New York Law Should Require Corroboration of Uncharged Crimes Offered Through Accomplice Testimony

Posted in Uncategorized on November 7th, 2011 by rlangone

Richard M. Langone, Esq.

The admission of evidence of uncharged crimes may be the most contested evidentiary matter in criminal trials. Yet, the law is still unsettled on the quantum of foundational evidence necessary to admit evidence of uncharged crimes and other bad acts offered to prove motive, modus operandi, common scheme or plan, or intent. For years, the criminal defense bar and prosecutors have debated the appropriate evidentiary standard. In People v. Alverez-Hernandez, 2002 Slip Op. 50498U, 2002 WL 31109630 (Co. Ct. Westchester Co. 2002), the defense argued that the Aclear and convincing evidence standard (ACCE) should apply, while the prosecution argued that the Afair preponderance of the evidence standard was better suited for the task. However, the court did not have to decide the issue because the proffered evidence was inadmissible for failing to meet either standard.

Many thought the issue would finally be resolved by the Court of Appeals ruling in People v. Giles, 47 A.D.3d 88 (1st Dept 2007), reversed, 11 N.Y.3d 495 (2008). In Giles, the defendant, who was charged with attempted burglary, was found in possession of stolen credit cards that were taken during two prior burglaries. The prosecution brought out that the credit cards had been stolen during prior burglaries as purported circumstantial proof of the defendant=s intent to commit burglary with regard to the instant offense. The majority in the Appellate Division held that the evidence of the uncharged burglaries was admissible because Gile’s recent and exclusive possession of the stolen credit cards raised an inference that he had committed the prior burglaries; therefore, evidence of those burglaries was relevant and admissible on the issue of Giles’ intent to commit the charged attempted burglary.

The dissent, on the other hand, argued that evidence of the prior uncharged burglaries was not admissible because Giles’s mere possession of the stolen credit cards failed to establish probable cause to believe that he committed those crimes. The dissent supported this position relying on People v. Robinson, 68 N.Y.2d 541, 548 (1986), where the Court of Appeals held that the CCE standard applies when uncharged crimes are offered to prove identityor modus operandi. Id. 101. However, the majority retorted that only when uncharged crimes evidence is offered to prove Aidentity does a heightened evidentiary standard apply. Id. 93.[1]

The Court of Appeals reversed Giles, holding that Giles’ possession of the stolen credit cards was insufficient to infer that he had committed the prior burglaries, and therefore insufficient to infer that he intended to commit the attempted burglary charged. People v. Giles, 11 N.Y.3d 495 (2008). Because the uncharged burglaries were deemed not relevant, the Court did not have to decide the issue of the proper threshold standard for admission of uncharged crimes.

In both Alverez-Hernandez and Giles the evidence of the uncharged crimes was inherently reliable and was not based on accomplice testimony. In this article, I argue that a heightened evidentiary standard should apply when uncharged crimes evidence is offered through the testimony of an accomplice Bor other similarly interested witness to prove a criminal defendant’s motive or intent to commit the crime charged.

In People v. Molineux, 168 N.Y. 264, 313-14 (1901), the Court of Appeals observed that because of the inherent prejudicial nature of uncharged crimes evidence, it must be subject to Athe most rigid scrutiny and must Ainvariably [be] excluded . . . in cases where its relevancy and competency [is] not clearly shown. Thus, the rule in New York (unlike the federal rule) is that evidence of uncharged crimes is presumptively inadmissible unless its probative value (vis-a-vis Molineux=s exceptions) Asubstantially outweighs@ the inherent potential for prejudice. People v. Ely, 68 N.Y.2d 520 (1986); People v. McKinney, 24 N.Y.2d 180, 184 (1969) (noting Ainherently prejudicial nature of evidence of uncharged crimes).

The Court of Appeals had those concerns in mind when it decided People v. Robinson, supra, and ruled on Athe degree to which defendant=s identity as the perpetrator of the uncharged crime must be established in order to make proof with respect to it admissible. The Court observed, Ato the extent that the evidence of the defendant=s identity as the perpetrator of the uncharged crime is unclear, or is called into question by defendant=s rebuttal evidence, the case becomes a trial within a trial which may result in jury confusion. 68 N.Y.2d at 549-50 (emphasis supplied). To obviate the need for a trial within a trial when a defendant controverts his or her involvement in an alleged uncharged crime, the Court adopted the Aclear and convincing evidence standard for admission of controverted uncharged crimes evidence.

While Robinson addressed the evidentiary issue in the context of the “identity” or modus operandi exceptions, the ratio decidendi of that decision applies equally where uncharged crimes evidence is offered through the testimony of an accomplice; in both contexts there exists the reliability concerns mentioned in Molineux and Robinson. First, and foremost, accomplice testimony is inherently suspect, especially when the accomplice is testifying in exchange for leniency. See, e.g., People v. Shakir, 8 A.D.3d 281, 282 (2nd Dept 2004) (AThese are circumstances under which the courts are called to exercise >utmost caution in dealing with accomplice testimony); People v. Gomez, 39 A.D.3d 668 (2nd Dept 2007) (in reversing conviction of possession of forged instrument, the court reiterated that, Awhere . . . both accomplices have secured reduced exposure to criminal liability for the cooperation with the prosecution, their testimony is subject to particular scrutiny).

Second, allowing an accomplice to testify to the defendant=s alleged commission of an uncharged crime to prove an element of the case, e.g., intent, absent a factual basis aliunde of the accomplice=s testimony, creates a grave danger of impermissible bolstering. A lie is a lie, no matter how many times repeated. See People v. Lewis, 69 N.Y.2d 321, 328 (1987) (Aa witness cannot buttress her own testimony by making further unsubstantiated accusations).

Third, this sort of testimony vitiates the corroboration requirement of C.P.L. ‘ 60.22.[2]Specifically, allowing an accomplice to testify that the defendant committed an uncharged crime, and then introduce independent evidence that the uncharged crime was in fact committed (without any independent evidence that the defendant in fact committed the uncharged crime), does not provide the independent indicia of reliability that C.P.L. 60.22 was intended to require because, A[o]ne of the most effective ways to lie is to mix falsehoods with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature. Lilly v. Virginia, 527 U.S. 116, 133 (1999). See People v. Broady, 5 N.Y.2d 500, 511-12 (1959); People v. Malizia, 4 N.Y.2d 22 (1958), holding that the corroboration must be truly and entirely independent of the accomplice testimony.

Finally, requiring a heightened standard of reliability as a preliminary matter to admission of accomplice testimony would enhance the trial court=s discretion to limit cross examination and defense efforts to introduce impeachment evidence on what may be tangential matters during the trial; Robinson adopted the clear and convincing evidence test precisely to prevent the occurrence of mini-trials during the trial. 68 N.Y.2d at 549-50 (noting that Ato the extent that the evidence of the defendant=s identity as the perpetrator of the uncharged crimes is unclear, or is called into question by defendant’s rebuttal evidence, the case becomes a trial within a trial which may result in jury confusion). Those concerns are no less when the contested uncharged crimes evidence is offered to prove an element of the crime charged, e.g., intent.

In conclusion, there are a myriad of important public policy reasons why a heightened evidentiary threshold should apply to admission of uncharged crimes when offered by accomplices to prove motive or intent to commit the crime(s) charged, not the least of which is the need to promote justice by insuring reliability when the uncharged crimes evidence is offered through accomplice testimony to prove an element of the offense charged, namely, intent. Hopefully someday in the not too distant future, the courts will decide this important yet neglected issue.

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[1]It should be noted that it could be argued that Giles conflicted with another decision from the First Department, People v. Sanchez, 209 A.D.2d 265 (1st Dept 1994). In Sanchez, the Adefendant was arrested after security guards observed him enter the unlocked outer door of an apartment building and crouch down in front of the second, locked, inner door leading into the building’s lobby. The locked door had been tampered with and left ajar; but there was no evidence that the defendant, or any part of him, had passed through it. In order to prove intent to burglarize the building, the prosecution introduced evidence that Aprior to [defendant=s arrest] numerous burglaries occurred in the building, which abated after defendant’s arrest. It was in that context that the court held that it was error to admit the evidence of the uncharged burglaries because there was not clear and convincing evidence that defendant had committed those uncharged crimes. Citing Robinson’sclear and convincing evidence standard, the court held that, [b]ased on this standard, the admission of testimony that burglaries in the area abated after the defendant was arrested should have been precluded (emphasis supplied). It is arguable that Sanchez had already decided that the clear and convincing evidence standard applied even when the uncharged crimes evidence was offered to prove intent.

[2]C.P.L. ‘ 60.22 provides:

AA defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.

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