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In Berger, the defendant was convicted of criminal solicitation of perjury based upon the testimony of the alleged solicitee, Gambino, who, in fact, subsequently perjured herself before the grand jury investigating a fraudulent loan scheme by the defendant.
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Argued December 17, 1980
Decided February 17, 1981
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, WILLIAM H. BOOTH, J.
Eugene Gold, District Attorney (Beth S. Lasky and Sharen Litwin of counsel), for appellant.
John Joseph Sutter and Larry Dorman for respondent.
Defendant was convicted of criminal solicitation of perjury based solely upon the testimony of Vivian Gambino, the alleged solicitee. The issue is whether that testimony required corroboration either because Mrs. Gambino was the solicitee, or because she was an accomplice, as a matter of law.
Defendant, Raphael Berger, was indicted in Kings County and charged with three counts of grand larceny in the second degree and one count of criminal solicitation in the second degree. The larceny charges stem from an alleged fraudulent loan scheme. It was charged that defendant solicited other persons to submit falsified loan applications, the proceeds of which he would ultimately receive and retain. The solicitation charge was based upon an alleged conversation with one of the loan applicants, Vivian Gambino, in which defendant urged her to commit perjury before a Grand Jury investigating the loans. Mrs. Gambino did in fact appear before the Grand Jury and concededly lied in her testimony. A short time later, after being warned that she was in danger of being prosecuted, Mrs. Gambino returned to the Grand Jury and recanted her false testimony.
After a nonjury trial, the court acquitted defendant of the larceny charges. Although the Trial Judge acknowledged that the only evidence of the solicitation was the testimony of Mrs. Gambino, he nonetheless found defendant guilty of criminal solicitation thus rejecting the argument that corroboration was required. A unanimous Appellate Division reversed and dismissed the indictment. The Appellate Division held that corroboration was necessary to establish criminal solicitation of perjury, inasmuch as prior law provided that the suborner and subornee of perjury were accomplices. There should be an affirmance, but for reasons which differ somewhat from those of the Appellate Division.
At common law, it was the general rule that "the testimony of a single witness, no matter what the issue or who the person, may legally suffice as evidence upon which the jury may found a verdict" (7 Wigmore, Evidence [3d ed], § 2034, at p 259 [emphasis in original]; see, also, People v Gibson, 301 N.Y. 244, 245-246). Indeed, it was this rule which served, in part, to distinguish trials in common-law courts from trials in civil and ecclesiastical courts (id., § 2032). For, under the civil law, the process of proof rested on a numerical system generally requiring more than one witness. So complete was the common law's rejection of the civil law approach that early judicial decisions carved out but one exception to the single witness rule: corroboration was necessary in criminal prosecutions for perjury (id., § 2040). In more recent times, corroboration rules have been established, usually by statute, as part of the proof for certain crimes (e.g., Penal Law, § 210.50 [perjury]) or as a safeguard when particular categories of witnesses testify (e.g., CPL 60.20 [testimony of unsworn witness less than 12 years old]; CPL 60.22 [accomplice testimony]). Thus, a court must consider both the crime charged and the particular class of witness testifying to determine whether corroboration is necessary.
Underlying the corroboration requirement is the notion that one man's oath is as good as another's and absent corroboration, there is only oath against oath (e.g., Regina v Muscot, 10 Mod 192).
As we have had occasion to note, the Legislature did not impose a corroboration requirement for the crime of criminal solicitation (People v Lubow, 29 N.Y.2d 58, 65-66). And, it would be inappropriate for us to engraft such a rule into that statute, absent some important justification. None is apparent in these circumstances. While it is true that inchoate crimes such as solicitation might present special problems of proof and credibility (People v Lubow, 29 N.Y.2d 58, 65-66, supra; see, also, Wechsler-Jones-Korn, Treatment of Inchoate Crimes in the Model Penal Code: Attempt, Solicitation and Conspiracy, 61 Col L Rev 571, 623), these differ in degree, but not in kind, from the general difficulties encountered in the fact-finding process. Courts are daily called upon to resolve questions of proof and credibility, and the single witness rule has generally proved adequate for this purpose. There is no particular reason to believe, if care is taken in fact-finding and appellate fact review, that the courts will be unable to perform their historic function in cases involving the crime of solicitation (see People v Lubow, supra, at pp 65-66). Thus, there is no basis for requiring corroboration merely because criminal solicitation is charged.
The courts have not hesitated to create corroboration rules where necessary. Thus, as discussed, the common-law courts required corroboration for the crime of perjury (see n 1, supra). And, although under early New York common law accomplice testimony needed no corroboration, "it was customary for judges to instruct jurors that they should not convict * * * upon the evidence of an accomplice unless such evidence was corroborated" (People v Everhardt, 104 N.Y. 591, 594).
In the present case, however, this does not end the matter. Although proof of criminal solicitation itself need not be corroborated, other rules requiring corroboration of the testimony of particular categories of witnesses must be examined. Here, defendant urges that the witness, Mrs. Gambino, was an accomplice as a matter of law. This position is not without merit.
Traditionally, the law has viewed accomplice testimony with a suspicious eye (see, e.g., People v Dixon, 231 N.Y. 111, 116; People v Everhardt, 104 N.Y. 591, 594; People v Doyle, 21 N.Y. 578, 579-580). While such evidence is competent, it may often lack the inherent trustworthiness of the testimony of a disinterested witness (e.g., People v Duncan, 46 N.Y.2d 74, 79; 7 Wigmore, Evidence [3d ed], § 2057, at p 322). This is so because one who concedes his or her own guilt of a crime and testifies against another might often be doing so to curry favor with the authorities. Courts have thus exercised the utmost caution in dealing with accomplice testimony, especially when the testimony is exchanged for immunity or other favorable prosecutorial consideration (e.g., People v Duncan, supra; People v Doyle, 21 N.Y. 578, 579, supra). And, many years ago the Legislature saw fit to provide that the uncorroborated testimony of an accomplice would not suffice for a conviction (L 1882, ch 360, § 1 [amdg Code Crim Pro, § 399]).
Many unsuccessful attempts have been made to bar accomplice testimony from admission into evidence (see, e.g., Linsday v People, 63 N.Y. 143, 152-154), especially through the 17th and 18th centuries in England, when accomplices were relied upon often in political prosecutions (7 Wigmore, Evidence [3d ed], § 2056, at p 312).
The modern version of the accomplice corroboration statute is CPL 60.22. That section requires corroborative evidence "tending to connect the defendant with the commission of" the offense. For purposes of the corroboration rule, an accomplice is defined as a witness who, according to the evidence adduced during the trial, "may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged" (CPL 60.22, subd 2).
It is important to emphasize that the corroboration statute's definition of an accomplice differs significantly from the Penal Law section that provides for accomplice criminal liability (Penal Law, § 20.00). Indeed, this court has previously recognized that CPL 60.22 broadened the definition of an accomplice "`in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable'" (People v Basch, 36 N.Y.2d 154, 157, quoting People v Beaudet, 32 N.Y.2d 371, 378). Thus, even though a witness is not liable criminally as an accomplice for the offense being tried, the witness may be an accomplice for corroboration purposes if he or she may reasonably be considered to have participated in an offense based upon some of the same facts or conduct which make up the offense on trial. Significantly, the proof need not show the participation of the witness beyond a reasonable doubt; it is sufficient if the witness may reasonably be considered to have participated. And, of course, the witness need not be actually charged with any offense to be deemed an accomplice (see, e.g., People v Basch, 36 N.Y.2d 154, 157-158, supra).
Under these principles, Vivian Gambino was an accomplice as a matter of law when she testified at defendant's trial for criminal solicitation. When Mrs. Gambino, in response to defendant's alleged solicitation, agreed to perjure herself before the Grand Jury and then actually did so, she became potentially liable for prosecution for the crime of conspiracy (e.g., Penal Law, § 105.00). The agreement occurred when she assented to defendant's solicitation. An overt act occurred (Penal Law, § 105.20), if there was none prior, when she appeared before the Grand Jury and actually lied. Although the overt act is based upon conduct different from the criminal solicitation, the agreement element of the conspiracy is based upon the same facts as the solicitation. Thus, the conspiracy is based upon some of the same facts as the criminal solicitation, and Mrs. Gambino was an accomplice under CPL 60.22. Even if the conspiracy is labeled as a separate crime, as the dissent advocates, it cannot be denied that the conspiracy is based upon some of the same facts as the solicitation. Finally, since Mrs. Gambino admitted that she agreed to lie and that she actually did so, there was no fact question as to her participation, and her accomplice status was established as a matter of law (see, e.g., People v Basch, 36 N.Y.2d, at p 157, supra).
When criminal solicitation is charged, it might often be the case that the solicitee declined to perform the solicited crime. In such a situation, the solicitee could not be viewed as an accomplice, having not agreed to or actually undertaken the commission of a crime.
The suggestion in the dissenting opinion that this court is overruling People v Lubow ( 29 N.Y.2d 58, supra) is difficult to understand. The Lubow case merely noted, in discussing some of the aspects of the new criminal solicitation provisions, that the solicitation statute itself does not require corroboration (id., at pp 65-66). Not mentioned and not at issue in Lubow was the situation where the solicitee may be viewed as an accomplice (see id.). Indeed, so far as appears, the corroboration question was not discussed or urged by the parties. In accordance with the Lubow discussion, we today hold that no corroboration requirement is imposed by the criminal solicitation statute. But, as discussed, corroboration is necessary here because the witness was an accomplice as a matter of law. Corroboration is needed not because of the particular crime charged but because of the category of witness who testified.
The following passage from Lubow — which constitutes the court's entire discussion of the problem — demonstrates that the court was merely pointing to the lack of a corroboration requirement as a "potential difficulty":
"There are, however, potential difficulties inherit in this penal provision which should be looked at, even though all of them are not decisive in this present case. One, of course, is the absence of any need for corroboration. The tape recording here tends to give some independent support to the testimony of Silverman, but there are types of criminal conduct which might be solicited where there would be a heavy thrust placed on the credibility of a single witness testifying to a conversation. Extraordinary care might be required in deciding when to prosecute; in determining the truth; and in appellate review of the factual decision.
"One example would be the suggestion of one person to another that he commit a sexual offense; another is the suggestion that he commit perjury. The Model Penal Code did not require corroboration; but aside from the need for corroboration which is traditional in some sexual offenses, there are dangers in the misinterpretation of innuendos or remarks which could be taken as invitations to commit sexual offenses. These are discussed by Wechsler-Jones-Korn (61 Col. L. Rev., p 623, supra) with the comment that `it is a risk implicit in the punishment of almost all inchoate crimes'."
Contrary to the dissenting opinion's reasoning, the absence of a corroboration requirement in the Penal Law provision proscribing criminal solicitation does not suggest that other corroboration requirements can be dispensed with. Otherwise accomplice testimony by itself could establish any substantive crime, such as murder, so long as the Penal Law provision defining that crime does not provide for corroboration.
Accordingly, it was error to convict the defendant upon the uncorroborated testimony of Mrs. Gambino, and the order of the Appellate Division should be affirmed.
The majority today holds that a criminal defendant may not be convicted of the crime of criminal solicitation solely upon the testimony of the solicitee where, as here, the crime solicited or "object crime" is actually committed by the solicitee. In so holding the majority has imposed a corroboration requirement not mandated by statute or the prior decisions of this court and has, in effect, overruled the decision of this court in People v Lubow ( 29 N.Y.2d 58). In my view, the imposition of such a requirement is unnecessary and contrary to the intention of the Legislature. I therefore respectfully dissent and cast my vote to reverse.
In 1976 defendant Raphael Berger was indicted by a Kings County Grand Jury and charged with three counts of grand larcency in the second degree (Penal Law, § 155.35) and one count of criminal solicitation in the second degree (former Penal Law, § 100.05). The larceny charges arose out of a scheme whereby defendant allegedly requested others to submit loan applications containing false information to Chemical Bank to induce the bank to make loans to these individuals which would never be repaid and the proceeds of which would end up in defendant's hands. The criminal solicitation charge was premised upon defendant's solicitation of Vivian Gambino, one of the loan applicants, to commit perjury before a Grand Jury investigating the allegedly larcenous scheme.
The Penal Law has since been amended to make criminal solicitation a more serious crime when the solicitee is a person under 16 years of age. (See Penal Law, § 100.05, subd 2; §§ 100.08, 100.13.) In this revision, the former second degree crime of which defendant was convicted becomes criminal solicitation in the fourth degree without change in penalty or substance. (Penal Law, § 100.05, subd 1.)
At a trial before the court, defendant was acquitted of all larceny charges because, in the opinion of the court, the prosecution failed to show that the bank would not have made the loans in issue but for defendant's alleged wrongdoing. He was, however, found guilty of criminal solicitation in the second degree. In its oral decision, the court noted that this conviction was premised solely upon the uncorroborated testimony of Mrs. Gambino that she lied before the Grand Jury at defendant's request. The court held as a matter of law, however, that no corroboration of her testimony was required.
On appeal, the Appellate Division, Second Department, reversed defendant's conviction and dismissed the indictment against him. The court held that while corroboration is, in general, not required to support a conviction of criminal solicitation, such corroboration is required where the crime solicited or the "object crime" is perjury and the conviction rests solely upon the testimony of the perjurer. The court noted that under prior law the suborner and subornee of the perjury were accomplices as a matter of law and concluded that the same accomplice relationship exists between solicitor and solicitee when the crime solicited is perjury. Having found defendant and Mrs. Gambino to be accomplices, the court reversed defendant's conviction upon the ground that it was based solely upon the uncorroborated testimony of his "accomplice". (CPL 60.22, subd 1.)
A majority of this court would affirm the disposition below. While on the one hand professing that it has declined the invitation to engraft judicially a corroboration requirement onto the provisions of the Penal Law proscribing criminal solicitation, the majority has on the other hand undertaken to achieve precisely the same result through what I believe to be an overly broad interpretation of the "accomplice corroboration rule" set forth in CPL 60.22. This sort of judicial sleight of hand, in my view, is unwarranted, for it matters little under which shell the majority finally brings the pea to rest, if the result of the shuffle is a rule not intended by the Legislature.
The statute defining criminal solicitation does not on its face require corroboration of the testimony of the solicitee as a prerequisite for conviction. (See Penal Law, § 100.00 et seq.) Moreover, as the majority candidly concedes, this court has, on a prior occasion, expressly refused to read such a corroboration requirement into the statute. (People v Lubow, 29 N.Y.2d 58, supra.) I would not retreat from our holding in Lubow by premising a corroboration requirement upon the notion that the solicitor and solicitee are accomplices as a matter of law. In my opinion there is no basis upon which to find the solicitor and solicitee to be accomplices.
First, it should be noted that the court below erred in finding that defendant and Mrs. Gambino were accomplices simply because the crime solicited was perjury. While it is true that under prior law the suborner and subornee of perjury were accomplices of each other (see, e.g., People v Evans, 40 N.Y. 1), the inherent differences between the crimes of subornation of perjury (former Penal Law, §§ 1632, 1632-a) and criminal solicitation (Penal Law, § 100.00 et seq.) require a holding that no such relationship exists between the solicitor and solicitee of perjury. The crime of subornation of perjury was not complete until the suborned perjury in fact occurred (see, e.g., People v Teal, 196 N.Y. 372, 376). Thus, since the suborner's crime could not even be committed without the aid and assistance of the subornee, the two were necessarily viewed as each other's accomplices.
The crime of criminal solicitation, on the other hand, is complete at the point when the request that the solicitee commit the crime leaves the solicitor's mouth. (People v Lubow, 29 N.Y.2d 58, supra.) The crime of solicitation has been committed long before the solicited perjury occurs. No action or overt act on the part of the solicitee is required to perfect the solicitor's crime. Obviously, if the solicitor's request goes unheeded, the solicitee could in no way be considered to be his accomplice and the solicitor can, therefore, be convicted upon the uncorroborated testimony of the solicitee. This being so, it is difficult to understand how the solicitee's complicity in the solicitor's crime can later expand because at some point, after the solicitor's request has become known to him, he decides to carry that request to fruition. The solicitor's crime was complete before the solicitee decided to act. Therefore, the solicitee's subsequent independent choice to act can have no effect whatever on the solicitor's crime of criminal solicitation. Hence, the solicitee is not the solicitor's accomplice.
This is not to say that where the object of the solicitation does occur the solicitee has committed no crime. Indeed, he has committed the so-called "object crime". Furthermore, the solicitor is accessorially responsible for this object crime as well. (Penal Law, § 20.00.) However, while the solicitor is accessorially responsible for the object crime, it does not follow that the solicitee is the solicitor's accomplice in the crime of solicitation since the solicitor's crime was committed in its entirety before the solicitee testified or agreed to testify falsely before the Grand Jury. That the solicitee later saw fit to commit a crime himself, while it may well effect his credibility, does not make him the solicitor's accomplice in committing the crime of solicitation.
Nor do I believe that CPL 60.22, the statutory "accomplice corroboration rule", provides an adequate basis for finding defendant and Mrs. Gambino to be accomplices as to the crime of criminal solicitation. That statute defines the term accomplice as "a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged." In this case, it is abundantly clear that Mrs. Gambino could not, as noted earlier, have in any way participated in the offense charged (i.e., criminal solicitation) because that offense was complete upon the defendant's solicitation of Mrs. Gambino to commit the crime of perjury. The question, then, is whether the evidence adduced at trial shows Mrs. Gambino to have participated in an offense based upon "some of the same facts or conduct which constitute the offense charged." (CPL 60.22, subd 2.)
The majority posits that Mrs. Gambino, by responding to defendant's request that she commit perjury, became chargeable with the crime of conspiracy (Penal Law, § 105.00 et seq.) and, thus, may reasonably be considered to have participated in a crime based on some of the same facts or conduct which constitute the offense of criminal solicitation. While I agree that both the defendant and Mrs. Gambino might well be criminally liable for conspiracy, a crime the defendant was not charged with, I would not read CPL 60.22 so broadly as to use that potential liability as a basis for finding Mrs. Gambino to be defendant's accomplice to the crime of criminal solicitation as a matter of law.
First, while one of the purposes of CPL 60.22 was to broaden the definition of the term "accomplice" (see, e.g., People v Beaudet, 32 N.Y.2d 371, 378), it is also true that the term remains limited to those who are " in some way criminally implicated in, and possibly subject to, prosecution for the general conduct or factual transaction on trial." (Denzer, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 60.22, pp 194-195.) Here, Mrs. Gambino is not criminally implicated in or subject to prosecution for the general conduct or factual transaction on trial. The only conduct or factual transaction in issue is defendant's criminal solicitation — nothing more. Mrs. Gambino is not criminally implicated in that solicitation and, in fact, had nothing whatever to do with it. It was a totally separate crime committed solely by the defendant which was complete before Mrs. Gambino did or agreed to do anything. This court has recognized that insofar as CPL 60.22 is concerned, where two crimes are totally separate, although factually related in a literal sense, the commission of the latter does not necessarily make a witness the accomplice of the person who committed the earlier crime. (Cf. People v Brooks, 34 N.Y.2d 475.) Any crime which Mrs. Gambino may have committed was totally separate from and was committed after the defendant's crime. Hence, she was not criminally implicated in the factual transaction on trial and was not defendant's accomplice as to the criminal solicitation even under the broader definition set forth in CPL 60.22.
I also disagree with the broad interpretation which the majority gives CPL 60.22 because the result of such an interpretation is the tacit overruling of our decision in People v Lubow ( 29 N.Y.2d 58, supra). In the Lubow case, we held that corroboration of a solicitee's testimony was not required to convict a solicitor of the crime of criminal solicitation. We made no distinction between those cases where the solicitee actually commits the solicited or "object" crime and those in which he does not. We made no such distinction in Lubow because we appropriately recognized that any subsequent activity after the solicitation occurs is irrelevant to the issue of whether criminal solicitation has been committed. Nowhere in the opinion is there the slightest hint that the applicability of the corroboration rule set forth in the case is in any way affected by the subsequent acts of the solicitee. Today, however, the majority has limited Lubow to only those cases where the solicitee fails to commit the "object crime". By doing so, the court is tacitly overruling the Lubow case, at least insofar as it applies to situations such as the one at bar where the solicitee later decides to commit a separate crime.
Such a change in the law is not required by the language of CPL 60.22. Indeed, that statute was enacted before the Lubow case was decided. Therefore, to argue that the Legislature intended to overrule Lubow by enacting CPL 60.22 is unconvincing at best.
It is also significant that the Legislature failed to include a corroboration requirement in the statute proscribing solicitation. The Legislature, in enacting the criminal solicitation provisions of the Penal Law, followed the example of the Model Penal Code which does not require corroboration, apparently believing, as did the drafters of the code, that the risk of false accusation implicit in the punishment of "inchoate" crimes was counterbalanced by the need to protect society from the act of criminal solicitation. (See Model Penal Code [Tent Draft No. 10], § 5.02, Comment, p 83.) If the Legislature had taken the view that corroboration was necessary to prevent injustice in the application of the statute, it could easily have included language in the solicitation statute specifically requiring corroboration, as it has done in the case of criminal facilitation, another inchoate crime (see Penal Law, § 115.15) and as other States have done in drafting their own solicitation statutes (see Cal Penal Code, § 653f). In our view, the Legislature's failure to include a corroboration requirement in the statutory provisions defining criminal solicitation while expressly providing for such a requirement for the crime of criminal facilitation bespeaks a clear legislative determination that corroboration of the solicitee's testimony need not be required to support a conviction of criminal solicitation. This being so, it is inappropriate for this court to judicially create such a requirement in the face of the statute's silence on the matter, for to do so subverts the clear intention of the Legislature.
In sum, it seems to me that the majority's decision to require corroboration in criminal solicitation cases where the solicitee commits the "object crime" is in clear conflict with a prior decision of this court and is contrary to the intention of the Legislature. Accordingly, I dissent and cast my vote to reverse.
Judges GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur with Chief Judge COOKE; Judge JASEN dissents and votes to reverse in a separate opinion.
Order affirmed.