People v. Berger, 52 N.Y.2d 214 (1981)
A conviction for criminal solicitation cannot be based solely on the uncorroborated testimony of the solicitee if that solicitee is also considered an accomplice to another crime based on the same facts as the solicitation.
Summary
Raphael Berger was convicted of criminal solicitation of perjury based on the testimony of Vivian Gambino, whom he allegedly solicited to lie before a grand jury. Gambino did lie but later recanted. The New York Court of Appeals addressed whether Gambino’s testimony required corroboration, either because she was the solicitee or because she was an accomplice as a matter of law. The Court held that while the crime of criminal solicitation itself does not require corroboration, the uncorroborated testimony of an accomplice cannot sustain a conviction. Because Gambino’s actions in furtherance of the solicitation made her an accomplice to conspiracy, her testimony required corroboration, which was lacking. Therefore, Berger’s conviction was overturned.
Facts
Raphael Berger was indicted for grand larceny and criminal solicitation. The solicitation charge stemmed from Berger allegedly urging Vivian Gambino, a loan applicant, to commit perjury before a grand jury investigating a fraudulent loan scheme. Gambino, after initially lying, recanted her testimony before the grand jury.
Procedural History
The trial court acquitted Berger of the larceny charges but convicted him of criminal solicitation, despite acknowledging that Gambino’s testimony was the only evidence. The Appellate Division reversed and dismissed the indictment, holding that corroboration was necessary because prior law treated the suborner and subornee of perjury as accomplices. The Court of Appeals affirmed the reversal, but based on different reasoning.
Issue(s)
Whether a conviction for criminal solicitation of perjury can be based solely on the uncorroborated testimony of the solicitee.
Holding
No, because the solicitee was also an accomplice as a matter of law; therefore her testimony required corroboration under CPL 60.22, which was not provided.
Court’s Reasoning
The Court of Appeals stated that at common law, the testimony of a single witness may legally suffice as evidence upon which the jury may found a verdict, but that the Legislature did not impose a corroboration requirement for the crime of criminal solicitation. However, CPL 60.22 requires corroboration of accomplice testimony. The court reasoned that Vivian Gambino was an accomplice as a matter of law because she could be held liable for conspiracy. The court stated “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 GPL 60.22.” The court distinguished this holding from People v. Lubow, stating, “Not mentioned and not at issue in Lubow was the situation where the solicitee may be viewed as an accomplice.” Therefore, the court held that Berger’s conviction could not stand on the uncorroborated testimony of an accomplice.