Fourth Department Splits on Sufficiency of Corroboration of Unsworn Testimony of Complainant

In People v People v Kolupa (2009 NY Slip Op 01039 [4th Dept 2/11/09]) the court split 3-2 as to whether there was sufficient corroboration of the testimony of the 7 year old complainant regarding a rape charge. More importantly, it appears that that the Court split as to what type of corroboration is required.

The majority held that the unsworn testimony of the seven-year-old victim was sufficiently corroborated by evidence of defendant's opportunity, the testimony concerning defendant's statements to the police and the testimony of other witnesses. The majority held that "[s]trict corroboration of every material element of the charged crime is not required, as the purpose of corroboration is to ensure the trustworthiness of the unsworn testimony rather than [to] prove the charge itself" (People v Petrie, 3 AD3d 665, 667; see Groff, 71 NY2d at 108-110).

By contrast, the dissenting justices emphasized that the "corroboration standard . . . requires proof of circumstances tending to prove the material facts of the crime and tending to connect the defendant to that crime" (People v Guerra, 178 AD2d 434, 434-435; see generally People v Groff, 71 NY2d 101, 109). The dissenting justices then pointed out that the two physicians who examined the victim testified that they found nothing of significance in their examination of the victim's genitals. The dissenting justices, concluded, that "[a]lthough the testimony concerning defendant's statements to the police established that defendant admitted that he exposed himself to the victim, there was no evidence that defendant admitted that he committed any other physical acts with respect to the victim."