New York Law Review

Tag: People v. Berger

  • People v. Berger, 52 N.Y.2d 214 (1981): Corroboration of Accomplice Testimony in Criminal Solicitation

    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.

  • People v. Berger, 21 N.Y.2d 611 (1968): Admissibility of Evidence Obtained via Consensual Electronic Surveillance

    21 N.Y.2d 611 (1968)

    Evidence obtained through electronic surveillance with the consent of one party to the conversation is admissible and does not violate the Fourth Amendment rights of the other party.

    Summary

    The Court of Appeals of New York addressed whether the use of a concealed radio device to transmit incriminating conversations between a defendant and a police informant violates the defendant’s constitutional rights. The court held that such transmission, with the consent of one party to the conversation, does not violate the Fourth Amendment. This decision rested on the principle that the real breach of privacy occurs when a party to a private conversation voluntarily discloses it, regardless of whether they rely on memory, notes, or electronic devices.

    Facts

    Five separate cases were consolidated on appeal, each involving a conviction for narcotics sales. In each case, a police informant, equipped with a concealed radio device, engaged in conversations with the defendant that were transmitted to and overheard by law enforcement. The defendants argued that the use of this transmitted evidence violated their constitutional rights.

    Procedural History

    The defendants were convicted at trial. They appealed, arguing that the evidence obtained through the electronic transmissions should have been suppressed as a violation of their Fourth Amendment rights. The appellate division affirmed the convictions, and the cases were subsequently appealed to the New York Court of Appeals.

    Issue(s)

    Whether the transmission to police by an informant, via a concealed radio device, of incriminating conversations with the defendants constitutes a violation of their constitutional rights, specifically their Fourth Amendment right to privacy?

    Holding

    No, because the voluntary disclosure of a conversation by one party to it, with or without electronic aids, does not violate the other party’s Fourth Amendment rights.

    Court’s Reasoning

    The court relied on On Lee v. United States, 343 U.S. 747 (1952) and Lopez v. United States, 373 U.S. 427 (1963), which established that the use of electronic devices by one party to a conversation to record or transmit it does not violate the constitutional rights of the other party. The court reasoned that the fundamental breach of privacy occurs when a party to a conversation decides to disclose it, and the method of disclosure (memory, notes, or electronic devices) is immaterial. Quoting from Lopez, the court emphasized that the problem is essentially the same whether the informer tells about the conversation based on memory or uses sophisticated devices.

    The court distinguished Katz v. United States, 389 U.S. 347 (1967), which held that intercepting a private telephone conversation by attaching an electronic device to a public telephone booth violated Fourth Amendment rights. The court reasoned that using a public telephone booth constitutes seeking private telephone service, and the interception is akin to eavesdropping. However, Katz does not apply to a voluntary disclosure by a party to the conversation.

    The court also cited Hoffa v. United States, 385 U.S. 293 (1966), which allowed an informer to testify about private conversations even without electronic recording or transmission. The court adopted the Second Circuit’s reasoning in United States v. Kaufer, 406 F.2d 550 (2d Cir. 1969), which similarly distinguished Katz. The court stated that the New York statute prohibiting eavesdropping expressly excepts conversations overheard with the consent of a party to the conversation.