70 A.D.2d 622 | N.Y. App. Div. | 1979
— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 21, 1978, convicting him of criminal solicitation in the second degree, after a nonjury trial, and imposing sentence. Judgment reversed, on the law, indictment dismissed, and case remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. The facts have been considered and are determined to have been established. Appellant was convicted of criminal solicitation in the second degree. The object crime of his solicitation was perjury in the second degree. His conviction was based solely on the uncorroborated testimony of his solicitee, who perjured herself before the Grand Jury. Although the crime of solicitation, in general, requires no corroboration of testimony (see People v Lubow, 29 NY2d 58), where the crime solicited is perjury and the sole testimony against the defendant is that of the solicitee/perjurer, corroboration is required. Under the former Penal Law, the suborner and subornee of perjury were, as a matter of law, accomplices (People v Evans, 40 NY 1; People v Gondelman, 253 App Div 924; People v Cohen, 20 AD2d 801). There is no reason to find a change in this relationship under our present Penal Law. It is clear under CPL 60.22 (subd 1) that a defendant may not be convicted of any oifense upon the uncorroborated testimony of an accomplice. Such was the case at bar and, thus, the conviction must be reversed, and the indictment dismissed. Titone, J. P., Suozzi, O’Connor and Shapiro, JJ., concur.
