People v. Lipsky

Moule, J. (dissenting).

I must dissent. CPL 60.50 codified the common-law rule that required additional proof of a crime, other than a confession, to obviate the danger that a crime may be confessed when no such crime has been committed (People v Murray, 40 NY2d 327, cert den 430 US 948). The statute is satisfied by the production of some proof, of whatever weight, that a crime was committed by *52someone. This additional proof may be either direct or circumstantial evidence (People v Murray, supra; People v Daniels, 37 NY2d 624; People v Cuozzo, 292 NY 85).

The rule at common law requiring, for a conviction of murder or manslaughter, either direct proof of the death of the person alleged to have been killed or the criminal agency of another as the means (People v Bennett, 49 NY 137; Ruloff v People, 18 NY 179) has long been abandoned. The provisions of former section 1041 of the Penal Law had statutorily incorporated the rule: “No person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact of killing by the defendant, as alleged, are each established as independent facts; the former by direct proof, and the latter beyond a reasonable doubt.” When the statute was revised in 1967, however, the requirements of section 1041 were not recodified, and the terms relating to direct proof were omitted; therefore, any form of proof, whether direct or circumstantial, will satisfy the criteria of CPL 60.50 (People v Jennings, 40 AD2d 357, affd 33 NY2d 880).

Apart from defendant’s admission, the additional evidence at trial established that Mary Robinson’s disappearance was unexplained. A long-time resident of Rochester, with local family and friends, she kept in frequent contact with them and in daily contact with her husband. There is no indication of any desire on her part to leave the area. Her personal belongings, including a treasured photograph she would likely have taken with her, were not missing and her Social Security account reflected no activity. The personal items located in defendant’s apartment, her glasses, purse and shoes, which she was wearing when last seen, were not the type she would leave behind if she had left willingly; she wore her glasses constantly, as she had difficulty seeing without them, and her purse contained her wallet and necessary identification. Defendant’s explanation that these items were left by a former tenant in his apartment was proven,, by the landlord, to be false. The linking of defendant to Mary Robinson is established by *53the fact that he was employed by the motel out of which she worked.

Also of importance is the fact that defendant abruptly decided to leave Rochester shortly after the disappearance of Mary Robinson, something he had never mentioned before, at which time he was described as “emotionally overwrought”. At the time he discussed leaving, he was engaged to a girl and had preregistered at a local college for the upcoming semester. When defendant told his fiancée that he was leaving, he stated he would be working with his parents in Arizona.

The circumstances surrounding defendant’s confession are telling in establishing criminal agency and indicate that Mary Robinson did not merely disappear. His voluntary revelation that he murdered Mary Robinson by strangling her came approximately two and one half years after she had been reported missing and was made in a setting unrelated and neutral to the confessed crime. Furthermore, there is no danger that this may be a questionable admission consisting of matters of common knowledge or details defendant might have observed upon visiting the scene after the death (People v Cuozzo, supra, at p 94); defendant possessed unique knowledge of the cause of death, disposition of the body, date and place of the murder, name of the victim as well as her occupation, and the confession was the event which initiated this investigation.

When viewed together, these circumstances, even if susceptible of an innocent construction, nevertheless are calculated to suggest the commission of the murder of Mary Robinson, and defendant’s confession furnishes the key to their explanation (People v Jaehne, 103 NY 182; People v Kelly, 67 AD2d 1009). In fact, one of defendant’s admissions was, “Well, go ahead and try to pin it on me, you can’t because there isn’t a body so there wouldn’t be any evidence.” The circumstantial evidence, when considered in connection with the confession, was sufficient to establish defendant’s guilt in the minds of the jurors beyond a reasonable doubt, and the case should not have been taken from them (People v Anderson, 80 AD2d 33).

Doerr, J., concurs with Hancock, Jr., J.; Dillon, P. J., *54concurs in a separate opinion; Callahan and Moule, JJ., dissent in an opinion by Moule, J.

Order affirmed.