In a Bribery Charge Is Accomplice Testimony Required to Be Corroborated

In People v. Morhouse (21 N.Y.2d 66, 286 N.Y.S.2d 657, 233 N.E.2d 705), the defendant was charged with "aiding and abetting" a Mr. Berger in bribing a Mr. Epstein. The only testimony of the bribe was that of Mr. Berger. On appeal, the defendant claimed that since the only evidence of the bribe was the testimony of an accomplice and that accomplice testimony was required by law to be corroborated and it was not, the Court should reverse the conviction. The Court of Appeals held that since defense counsel's opening, summation and cross-examination conceded that a bribe had occurred, but claimed that the defendant was not involved with the bribery, this concession "relieved the prosecution of any obligation of presenting further evidence on the question on the trial" (75). Openings, summations and cross-examination are generally matters that do not require a prosecutor's consent. Clearly, the bribe is an element of a bribery charge. Nonetheless, the Court of Appeals relieved the People of the obligation to corroborate the evidence of an accomplice, because of the defendant's unilateral statements in defense counsel's opening and closing remarks. In People v. Walker (198 NY 329, 335, 91 N.E. 806), the Court stated: It should be observed, however, that when a fact, even of great importance, is admitted by the defendant or his counsel in open court during the trial, that fact is established by the admission, and no evidence need be given in relation to it. Under such circumstances, the court might with propriety charge that the fact was established, but with this exception every constituent part of the crime must be left to the jury, if a timely request is made to that effect. In People v. Green (35 N.Y.2d 437, 442, 363 N.Y.S.2d 910, 323 N.E.2d 160), the Court cited Walker for the following proposition: Unless conceded, every element of a crime must be found by a jury before it may return a verdict of guilty (CPL, Consol. Laws, c. 11-A, 70.20; People v. Walker, 198 N.Y. 329, 334-335, 91 N.E. 806). The Court's statement implies that if a defendant "concedes" an element of the crime, the trial court need not charge such an element to the jury. In People v. Moore, (46 N.Y.2d 1, 7, 412 N.Y.S.2d 795, 385 N.E.2d 535), the court in discussing the necessity to charge a jury about the issue of venue stated: That is not to say that the court must always charge the jury with respect to venue. The defendant may concede that the venue is proper or he may admit the facts upon which venue is based (cf. People v. Brady, 16 N.Y.2d 186, 190, 264 N.Y.S.2d 361, 211 N.E.2d 815). Once again the Court of Appeals seems to say that if a defendant concedes an issue the court need not charge the issue. In People v. Lewis (64 N.Y.2d 1031, 1032, 489 N.Y.S.2d 57, 478 N.E.2d 198) and People v. Flynn (79 N.Y.2d 879, 881, 581 N.Y.S.2d 160, 589 N.E.2d 383), the Court of Appeals seems to imply that a defendant's concession of an element of a crime absolves the trial court of its obligation to instruct the jury on the element that is conceded. Both cases rely upon Walker. The dicta in these cases suggest that a defendant may unilaterally remove an issue from the case, the trial court is not required to instruct the jury regarding the element that the defendant has conceded and the People do not have to present evidence on that element or fact.