People v Gundarev

[*1] People v Gundarev 2009 NY Slip Op 51972(U) [25 Misc 3d 1204(A)] Decided on September 23, 2009 Criminal Court Of The City Of New York, Kings County Gerstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 23, 2009
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,

against

Dmitriy Gundarev, Defendant.



2008KN085685



Charles J. Hynes, District Attorney (Natasha Rossell, Esq. of counsel), for the People.

Brooklyn Defender Services (Elizabeth Latimer, Esq. of counsel), for Defendant.

Michael Gerstein, J.

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.

Miedema is not Binding

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 [*2]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 Division [FN1], 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.[FN2]

Legal and Factual Background

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. [*3]

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.

The Parties' Arguments

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.

The Confession Corroboration Rule

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 [*4]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.

The Complaint is Facially Insufficient

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 such motor vehicle is impaired by the consumption of alcohol.

Defendant argues that this case is distinguishable from Vialva, supra , and that we should instead follow People v. Walker, supra , where the court held a complaint insufficient, finding "but for the defendant's alleged admission that [h]e had been driving said automobile, there is no corpus delicti of any of the offenses charged..." (Defendant's Memo 4). The People argue, citing People v. Booden, 69 NY2d 185, 505 NE2d 598, 513 NYS2d 87, that the Court of Appeals has interpreted CPL § 60.50 to require only slight evidence that the crime alleged has occurred.

In People v. Dolan, supra , the Appellate Term, First Department held that to the extent the confession corroboration requirement applied in the context of a misdemeanor prosecution for driving while intoxicated, the requirement was satisfied by an information which contained non-hearsay allegations based upon the arresting police officer's own observations sufficiently corroborating the occurrence of the offense. Accord People v. Brown, 180 AD2d 480, 579 NYS2d 673 (1st Dept 1992) (defendant's statement that he had been driving an automobile that showed signs of having been tampered with was sufficiently corroborated to allow a conviction for possession of stolen property.) Dolan relied upon Booden, supra , in which the Court of Appeals held that circumstances of an accident supporting the inference that the vehicle in question had been driven by a person under the influence of alcohol were sufficient to corroborate Defendant's confession. Kaminiski distinguishes Booden on the facts, noting that in Kaminiski "there is no indication, outside of defendant's admission, that the car he was standing near' had been driven by anyone, intoxicated or otherwise." Supra at 1094.

In Vialva, supra , where Defendant walked into a police station to report that he had been [*5]driving his motor vehicle, which had just been involved in an accident, the accusatory instrument contained the additional allegations that the officer observed said vehicle to have damage in that the rear bumper of said vehicle was dented and slightly detached from the vehicle, the officer observed the Defendant exhibiting signs of intoxication and Defendant submitted to a chemical test with a result of .173% BAC. Significantly, we noted, some cases declining to apply the corroboration confession rule to misdemeanor accusatory instruments did in fact find circumstances beyond Defendant's admission supporting the inference that a vehicle was driven under the influence of alcohol, and in that sense were compatible with both Dolan and Booden. See e.g. Espanda, supra (additional allegations that defendant was observed by the arresting officer at the scene of the accident).

This case is factually inapposite to Booden and its progeny. Here, without Sally Levy's Supporting Deposition, the only non-hearsay allegations are that on or about November 15, 2008, at approximately 9:00 PM, at 65th Street and Dahill Road, Officer Burke was informed by Defendant's own statements that Defendant had been driving a vehicle at the above time and place, and that at the approximate above time and place, Officer Burke observed the Defendant exhibiting signs of intoxication. Assuming arguendo that corroboration of Defendant's statement is required at this stage, Officer Burke's observations fail to corroborate anything other than the fact that he observed Defendant at the aforementioned time and place, exhibiting signs of intoxication. Significantly, there is no mention of Officer Burke observing any circumstances of an accident, or any vehicle allegedly driven by Defendant.

CPL 60.50 "appears to be the tiniest corroboration requirement known, and it takes very little to satisfy it." (Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 60.50, at 678; People v. Groff, 71 NY2d 101, 107-109.) Kaminiski, supra at 1093. This is one of the rare cases where the accusatory instrument contains absolutely no corroboration of Defendant's alleged admission that he had been operating a motor vehicle. Our fact pattern does not meet the standard set forth in Booden, supra , in that there are no circumstances supporting the inference that a vehicle existed, or had been driven by anyone, let alone Defendant, to corroborate the occurrence of the offense of driving while impaired, and specifically the element that Defendant was driving or otherwise operating a motor vehicle.

Here, where the allegation that Defendant operated a motor vehicle is based solely on Defendant's alleged statement, without any corroboration, the fact pattern is similar to Walker and Kaminiski. There are no allegations that Officer Burke, or any other person, "observed the defendant operating any such vehicle, occupying it (see Dolan, 1 Misc 3d at 33, People v. Haddock, 2001 WL 1190861 (Dist. Ct., Nassau Co. 2001)) or even standing near it (see Kaminiski, 143 Misc 2d at 1090)." Walker, supra at 752-53. Though there may be factual allegations to support a finding that Defendant had consumed sufficient alcohol to be impaired, there is no proof, aside from Defendant's statement, that he had been operating a motor vehicle, an essential element of the charge. See Kaminiski, supra . Here, as in Walker, the accusatory instrument does not independently allege that the vehicle existed, let alone that it was driven by Defendant. Supra at 753. Thus, unlike Vialva, supra , where Defendant unequivocally admitted that he been driving and was just involved in a motor vehicle accident, and the officer personally observed damage to the vehicle consistent with an accident, here there is no "independent evidence of the corpus delicti." Booden, supra at 187. [*6]

CPL 60.50 provides that Defendant may not be convicted of an offense upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed. Here, where the allegations put forth in the accusatory instrument do not suggest that any such corroboration is forthcoming, it appears that a trial would be a mere formality, as we would be required to grant a trial order of dismissal in the absence of any corpus delicti.

We recognize the statutory anomaly which clearly provides that while a felony indictment may be dismissed if based solely on defendant's uncorroborated admissions, a defendant charged only with a misdemeanor, who may not be convicted solely on a confession, might nevertheless be forced to proceed to trial in those circumstances. This anomaly has led to conflicting case law, cited at pp. 5-8, supra , as to whether such a complaint is subject to dismissal.

At the time of our opinion in Vialva, no appellate court in the Second Department had ruled directly on this issue. In People v. Trazino, NYLJ 5/26/99, p. 30, col. 2 (App. Term, 9th and 10th Jud. Dists.), the Appellate Term, Second Department, Ninth and Tenth Districts, unanimously reversed defendant's conviction for sexual abuse in the third degree, holding, in pertinent part, "the information fails to contain any non-hearsay statements tending to corroborate the defendant's written confession and therefore fails to establish a prima facie case." However, the Trazino court also noted the ambiguity of defendant's statement at issue, and deemed that statement insufficient to find reasonable cause for certain necessary elements of the crime charged.

In Miedema, supra , the Appellate Term, Second Department, Ninth and Tenth Districts ruled squarely on the issue, holding that although CPL 60.50 refers only to convictions, "the requirement that a defendant's confessions or admissions be corroborated has been extended to the accusatory stage of misdemeanors." Supra at 1, relying on Walker, supra and Dolan, supra . The Miedema court found the additional allegations claimed to corroborate defendant's admissions inadequate to show that any crime had been committed in that case, and affirmed the trial court's dismissal of the Information.

The arguments as to statutory interpretation regarding the application of CPL 60.50's corroboration requirement to misdemeanors, have been made in many of the cases cited above. On the one hand, it is urged that the legislature could easily have intended a different treatment for misdemeanors from that of felonies. See Vialva, supra at 4-6. On the other side, it is argued that any distinction regarding the need for corroboration is illogical, in that defendant could not be convicted of either a misdemeanor or a felony without corroboration of any admission or confession, and therefore it makes little sense to provide that a felony indictment resting on an uncorroborated confession may be dismissed as insufficient, while a defendant accused of a misdemeanor in similar circumstances must go to trial. Notwithstanding the divergent case law, the legislature has yet to clarify its intentions, and it remains for this Court to interpret the interplay between CPL 100.40, 190.15 and 60.50.

While we followed Heller in our decision in Vialva, we also noted that there was sufficient corroboration to allow the case to proceed even were we to hold corroboration of Defendant's statement to be necessary.

Here, where the factual allegations in the accusatory instrument contain absolutely no corroboration of Defendant's statement that he was driving, we are persuaded by the Appellate [*7]Term's recent holding, in Miedema, that the statements of defendant must be "sufficiently corroborated by allegations of other evidence showing that the crime charged was committed." Supra at 1.

There is a further reason supporting the holding of Miedema, which we follow today. Assuming arguendo we were to hold the complaint sufficient, the People have not suggested how they would meet the requirement of corroboration necessary for conviction. Without corroboration, the trial would be a hollow exercise, with dismissal mandated at its conclusion, as a matter of law. No purpose would be served by such a trial, which would waste judicial and prosecutorial resources, and subject the Defendant to an unnecessary ordeal, the results of which would be preordained.[FN3] While the legislature may not have explicitly provided for dismissal in these circumstances, we believe that well settled law (CPL 170.35) allowing pre-trial dismissal of cases for facial insufficiency, should be interpreted to allow for dismissal of a case where the corroboration rule prevents the People from proving a prima facie case.

Conclusion

Defendant's motion to dismiss the count of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL §§ 1192(1)) is therefore granted.

This constitutes the decision and order of this Court.

Dated:September 23, 2009

Brooklyn, New York

______________________________

MICHAEL GERSTEIN

J.C.C. Footnotes

Footnote 1:It is notable that there is no Appellate Term in either the Third or Fourth Departments.

Footnote 2:Pestana further questions how the court can be bound by an unpublished decision of its own Appellate Term, citing Yellow Book of NY v. Dimilia, 188 Misc 2d 489, 490, 729 NYS2d 286 (Dist Ct Nassau Co 2001). This Court notes that Miedema is an unreported decision.

Footnote 3:Nor would this case be subject to dismissal under Speedy Trial and readiness requirements, as it is well settled that CPL 30.30 does not apply to VTL 1192(1), a traffic information, and the only remaining charge. See e.g. People v. Taylor, 189 Misc 2d 313, 314 (App. Term 2nd Dept. 2001); People v. Gonzalez, 168 Misc 2d 136 (App. Term 1st Dept.), appeal denied, 88 NY2d 936 (1996); People v. Gordon, 2 Misc 3d 134(A) (App. Term 9th & 10th Jud. Dists.), appeal denied, 3 NY3d 706 (2004); People v. Ramsammy, 11 Misc 3d 1061(A) (Crim. Ct. Kings Co. 2006).