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The People &C v. Frank Suber

May 8, 2012

THE PEOPLE &C., APPELLANT,
v.
FRANK SUBER, RESPONDENT.



The opinion of the court was delivered by: Graffeo, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The issue in this appeal is whether a defendant's admissions must be corroborated in order to satisfy the prima facie case requirement for an information. We hold that corroboration is not necessary in this context.

Defendant Frank Suber registered as a level-three sex offender in 1999. At that time, he received written notification that any change in his home address had to be communicated to the Division of Criminal Justice Services (DCJS) and that he also had to personally verify his residence address with local law enforcement officials every 90 days. In December 2005, defendant moved to an address in Brooklyn and he subsequently moved to another location within the borough in February 2006. On both occasions, defendant failed to update his information with DCJS and did not verify his addresses with the NYPD. In July 2006, he notified DCJS that he was living in the Bronx.

Defendant eventually told a police officer about his two former Brooklyn residences. As a result of that disclosure, the People filed a misdemeanor information charging defendant with two counts of failing to personally verify his home address with local law enforcement every 90 days (see Correction Law § 168-f [3]) and two counts of failing to register as a sex offender within 10 days after changing his address (see Correction Law § 168-f [4]).*fn1 One of the allegations in the accusatory instrument was that defendant had admitted moving to two Brooklyn residences without notification during the relevant time periods.

In Criminal Court, defendant challenged the facial sufficiency of the information because it did not state facts or include affidavits that corroborated his statements to the police. After the court concluded that corroboration was not required, defendant pleaded guilty to one count of failing to register within 10 days of moving in return for a sentence of time served. The Appellate Term reversed and dismissed the accusatory instrument, holding that an information must set forth corroboration of an admission and that the lack of corroborative allegations regarding defendant's residences rendered the accusatory instrument jurisdictionally insufficient (2011 NY Slip Op 21128 [App Term, 2d Dept, 2011]). A Judge of this Court granted leave to appeal (17 NY3d 802 [2011]) and we now reverse and reinstate the conviction.

Because defendant pleaded guilty, he forfeited any challenges to non-jurisdictional defects in the accusatory instrument -- only jurisdictional and certain constitutional issues may be raised on appeal (see generally People v Konieczny, 2 NY3d 569, 573 [2004]). Not every statutory requirement for an accusatory instrument is jurisdictional in nature (see People v Casey, 95 NY2d 354, 362 [2000]). The issue before us is whether corroboration of a defendant's admission is necessary in an information. If it is not required, then we have no occasion to address whether a corroboration element would be jurisdictional in nature.

As a general rule, a person cannot "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" (CPL 60.50). Since this corroboration provision refers only to convictions, it has no bearing on the adequacy of charging instruments that provide the bases for prosecutions. Instead, the statutes that apply to accusatory instruments must be consulted to determine whether corroboration of an accused's admission is needed to commence a criminal proceeding.

The Criminal Procedure Law contains various mandated components for the different categories of accusatory instruments. As pertinent to the issue in this appeal, a complaint is one of the simplest forms of an accusatory instrument. It must contain "facts of an evidentiary character" (CPL 100.15 [3]) that establish "reasonable cause" to believe that the accused committed the charged offense (CPL 100.40 [4] [b]). That requirement also applies to an information (see CPL 100.40 [1] [a], [b]) but this type of instrument is subject to a more stringent test: the information and any supporting depositions must set forth "[n]on-hearsay allegations" that "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]). This is referred to as the "prima facie case" standard for informations (see e.g. People v Casey, 95 NY2d at 362). "The reason for requiring the additional showing of a prima facie case . . . lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law" (People v Jones, 9 NY3d 259, 262 [2007] [internal quotation marks omitted]).

In the hierarchy of accusatory instruments, the Criminal Procedure Law imposes additional requirements for indictments. In order to issue an indictment, a grand jury must be presented with "competent and admissible evidence . . . provid[ing] reasonable cause" and the proof must be "legally sufficient to establish that such person committed such offense" (CPL 190.65 [1]). The phrase "legally sufficient evidence" is defined in the Criminal Procedure Law as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent" (CPL 70.10 [1]). Section 190.65 (1) similarly directs that the proof presented to the grand jury must be corroborated if corroboration is legally required to sustain a conviction (see CPL 190.65 [1] [a]). Since CPL 60.50 states that a conviction cannot be based solely on an accused's uncorroborated admission, both CPL 70.10 (1) and 190.65 (1) correlate the corroboration rule to grand jury indictments.

On occasion, we have referred to the "legally sufficient evidence" standard for indictments as a "prima facie case" requirement (see e.g. People v Gordon, 88 NY2d 92, 95 [1996]; People v Swamp, 84 NY2d 725, 730 [1995]). Based on this label, one could view our precedent as having equated the prima facie case required for an indictment -- which includes a corroboration requirement -- with the prima facie case standard for an information. Indeed, the dissent adopts the view that corroboration is a component of an information's prima facie case even though the statutes governing the content of informations do not incorporate the "legally sufficient evidence" test. But a closer examination of our decisions and the relevant statutes reveals that there are at least two important differences that result in distinct prima facie case standards for informations and indictments.

First, we have been careful to note that the prima facie showing for an indictment refers to legally sufficient evidence that is competent -- i.e., evidence that is not "inadmissible under any circumstances because [it is] subject to a per se exclusionary rule" (People v Swamp, 84 NY2d at 732; see People v Gordon, 88 NY2d at 96; People v Oakley, 28 NY2d 309, 312 [1971]; see generally People v Grant, 17 NY3d 613, 616 [2011]; People v Mills, 1 NY3d 269, 274-275 [2003]; People v Bello, 92 NY2d 523, 525-526 [1998]; People v Hetrick, 80 NY2d 344, 349 [1992]). The prima facie case for an information, in contrast, excludes only a particular type of incompetent evidence -- hearsay -- without restricting the People from utilizing other types of proof in order to commence a criminal proceeding (see CPL 100.40 [1] [c]).

Second, and more relevant to this appeal, the precise language that the Legislature chose when the Criminal Procedure Law was adopted unmistakably establishes that corroboration was intended to be a component of the prima facie case for an indictment but not an information. Contrary to the specific reference to the corroboration rule in the statutes that pertain to indictments (see CPL 70.10 [1]; 190.65 [1]), the text of the information provision references "[n]on-hearsay allegations . . . establish[ing], if true, every element of the offense and the defendant's commission thereof" (CPL 100.40 [1] [c]). This statute governing informations does not state, directly or inferentially, that this type of accusatory instrument must corroborate an accused's admission. Since clear and unequivocal statutory language is presumptively entitled to authoritative effect (see e.g. People v Ballman, 15 NY3d 68, 72 [2010]; People v Kisina, 14 NY3d 153, 158 [2010]; People v Garson, 6 NY3d 604, 611 [2006]), CPL 100.40 (1) does not mandate corroboration of an admission in an information. Hence, the prima facie case requirement for an information "does not rise to the level of legally sufficient evidence that is necessary" to set forth a facially valid indictment or "survive a motion to dismiss based on the proof presented at trial" (People v Kalin, 12 NY3d 225, 230 [2009]).

Legislative history confirms this textual analysis. The drafters of the Criminal Procedure Law initially proposed that the "legally sufficient evidence" standard be incorporated in the legislation that ultimately became CPL 100.40 (see NY Temp Commn on Revision of the Penal Law & Criminal Code, Proposed CPL 50.35 [1] [c], at 84 [1967]; id. at 35 [1968]). That term of art -- "legally sufficient evidence" -- was later removed by the Legislature from the information provision and replaced with the current "[n]on-hearsay allegations" language (see NY Temp Commn on Revision of the Penal Law & Criminal Code, Proposed CPL 100.40, at 55 [1969]). Such a significant alteration during the drafting process indicates that this issue was considered and a decision was made to exclude corroboration from the necessary components of a facially sufficient information (see generally Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 100.40, at 388).

Events that occurred after the enactment of the CPL provide additional support for this conclusion. Despite the technical definition of "legally sufficient evidence," in the 1970s a split emerged in the appellate courts as to whether an indictment had to allege corroborative facts (compare People v King, 48 AD2d 457, 459 [1st Dept 1975], with People v Laws, 54 AD2d 518, 519 [3d Dept 1976]). The Legislature responded by amending CPL 190.65 (1) to include an explicit corroboration rule (see L 1983, ch 28, ยง 1) even though this created a redundancy with CPL 70.10 (1) (see Bellacosa, 1983 Supplementary Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 190.65, quoted in 1993 Cumulative Ann Pocket Part, at 107-108). Notably, at the time ...


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