People v. Pace

Lawton, J.

(dissenting). I respectfully dissent and would reverse. In my view, a conviction that is based upon the uncorroborated testimony of a jailhouse informant, or jailhouse “snitch,” should be deemed as a matter of law to be supported by legally insufficient evidence. No such basis for reversal is available under existing law, however, and thus I would re*986verse the judgment on the ground that the verdict is against the weight of the evidence (see CPL 470.20 [5]).

The facts of this case point out what I perceive to be a deficiency in the law. The only protection a defendant presently has against the admission in evidence of the testimony of a jailhouse informant, or jailhouse “snitch,” is that afforded under CPL 60.50, which is inadequate. “The purpose of th[at] statute is to avert the danger that a crime may have been confessed when no crime in any degree has been committed by anyone” (People v Chico, 90 NY2d 585, 590 [1997] [internal quotation marks omitted]; see People v Lipsky, 57 NY2d 560, 569-570 [1982], rearg denied 58 NY2d 824 [1983]; People v Reade, 13 NY2d 42, 45 [1963]). CPL 60.50 in no way inhibits the admissibility of or limits the weight to be given to the testimony of a jailhouse informant, no matter how suspect that testimony may be. A description of a recent study concerning the unreliability of the testimony of jailhouse informants is found in Symposium: Thinking Outside the Box: Proposals for Change: Closing Remarks (23 Cardozo L Rev 899, 900-901 [2000]).

I respectfully suggest that the Legislature or the Court of Appeals fashion a remedy for this deficiency in the law. One possible remedy would be to duplicate the protection afforded a defendant from being convicted solely on the testimony of an accomplice. For example, CPL 60.22 (1) requires that an accomplice’s testimony be corroborated by evidence “tending to connect the defendant with the commission” of the crime. In enacting that statute, the Legislature thereby recognized that corroboration is appropriate because “the motivation behind an accomplice’s testimony may have been to curry favor with the prosecution and receive lenient treatment” (People v Moses, 63 NY2d 299, 305 [1984]). No similar protection is provided to a defendant with respect to the testimony of a jailhouse informant, although the same or even greater motivating factors may exist. The facts of this case amply support that conclusion. Had defendant herein been afforded similar protections, the jury could well have concluded that there was insufficient corroborative evidence to support a guilty verdict (see People v Glasper, 52 NY2d 970, 971 [1981]; People v Fiore, 12 NY2d 188, 201-202 [1962]). In fact, the very questionable evidence placing defendant at the scene of the crime at a time other than during the commission of the crime would be insufficient corroboration as a matter of law (see Moses, 63 NY2d at 307-308). Consequently, I would reverse the judgment of conviction and dismiss the indictment. Present — Pigott, Jr., P.J., Pine, Hurlbutt, Lawton and Hayes, JJ.