Fourth Deparment Splits on Whether Child-Victim's Testimony Was Corroborated

The defendant in People v. Shannon Kolupa appealed from his conviction for criminal sexual act in the first degree (Penal Law § 130.50 [3]) and attempted rape in the first degree(Penal Law 10.00, 130.35 [3]) on the grounds that the seven-year-old victim's testimony was not sufficiently corroborated. The Fourth Department disagreed and said:

"Contrary to defendant's contention, 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 (see generally People v Groff, 71 NY2d 101, 109-110). "Strict 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)."

Two dissenters would have reversed for lack of corroboration and noted that:

"the two physicians who examined the victim testified that they found nothing of significance in their examination of the victim's genitals. Although 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. We thus conclude that defendant's testimony tended to prove only the material facts of the lesser crimes of which defendant was convicted, attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [3]) and endangering the welfare of a child (§ 260.10 [1]), but failed to prove the material facts of the remaining crimes".