
    The People of the State of New York, Appellant, v James Booden, Respondent.
    Argued January 9, 1987;
    decided February 19, 1987
    
      POINTS OF COUNSEL
    
      Stephen R. Sirkin, District Attorney (Daniel G. Barrett of counsel), for appellant.
    
      Frank R. Webster for respondent.
   OPINION OF THE COURT

Simons, J.

Defendant was convicted after a nonjury trial in the Walworth Town Court of operating a motor vehicle while his ability was impaired by the consumption of alcohol (Vehicle and Traffic Law § 1192 [1]). The conviction arose out of an incident which occurred at approximately 3:00 a.m. on July 20, 1985 when a westbound vehicle owned by defendant’s father left Route 441 and came to rest in a ditch on the north side of the highway facing east. When the investigating officer reached the scene of the accident, he found defendant and two companions, a male and a female, standing beside the vehicle. When asked who had been driving the vehicle, defendant responded that he had been driving westbound, that a deer had jumped in front of him, and that he had driven into the ditch when he swerved to avoid the deer. Defendant then identified himself by producing his driver’s license. The officer testified that he smelled alcohol on defendant’s breath and that his appearance and conduct indicated he was intoxicated. The officer gave defendant a field sobriety test and, when he failed the test, he was arrested and taken to the police barracks where a breathalyzer test was administered. The test indicated that defendant had a blood alcohol level of .08%.

On appeal, County Court reversed the judgment and dismissed the information, finding defendant’s admission had not been sufficiently corroborated. The matter is before us by leave of a Judge of this court.

CPL 60.50 provides that a person may not be convicted of an offense "solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.” The section does not require corroboration of confessions or admissions in every detail, but only "some proof, of whatever weight”, that the offense charged has in fact been committed by someone (People v Daniels, 37 NY2d 624, 629; see also, People v Cuozzo, 292 NY 85; People v White, 176 NY 331). Its purpose is to avoid the possibility that a crime may be confessed when, in fact, no crime has been committed (People v Lipsky, 57 NY2d 560, 570, quoting People v Reade, 13 NY2d 42; and People v Lytton, 257 NY 310). The requirements of the rule are not rigorous and sufficient corroboration exists when the confession is "supported” by independent evidence of the corpus delicti (see, People v Safian, 46 NY2d 181, 187, cert denied sub nom. Miner v New York, 443 US 912; cf. People v Brasch, 193 NY 46, 60-65; People v Jaehne, 103 NY 182, 199-200). The necessary additional evidence may be found in the presence of defendant at the scene of the crime, his guilty appearance afterward, or other circumstances supporting an inference of guilt (see, People v Cuozzo, supra, p 92; People v Reade, supra, p 46; and see, 7 Wigmore, Evidence § 2071, at 511 [Chadbourn rev]). Corroboration existing, the evidence as a whole must, of course, establish guilt beyond a reasonable doubt.

There was sufficient corroborative evidence in this case that the offense of driving while impaired had been committed on the evening in question. The vehicle owned by defendant’s father was found in a ditch, facing in the wrong direction of travel; the pavement of the highway was dry, negativing suggestions of an accidental skid; defendant and his companions were standing next to the vehicle when the investigating officer arrived and, when defendant and his companions were asked who had been driving the vehicle, defendant volunteered to answer the question and produced his identification, indicating by his conduct that he was the driver. The officer noticed that defendant exhibited outward signs of intoxication and his breath smelled of alcohol. The circumstances of the accident may have been capable of innocent explanation, but they nonetheless supported an inference that a crime had been committed because the vehicle had been driven by a person under the influence of alcohol. Defendant’s admission was the "key” that explained those circumstances and established defendant’s connection to the criminal act (see, People v Lipsky, 57 NY2d 560, 571, supra; People v Brasch, 193 NY 46, 60-61, supra; People v Jaehne, 103 NY 182, 199-200, supra).

Accordingly, the order of the County Court should be reversed, the judgment of Walworth Town Court reinstated, and the case remitted to Wayne County Court for consideration of the facts.

Bellacosa, J.

(dissenting). I would affirm the County Court’s dismissal of the driving while impaired charge because the corroboration requirement of CPL 60.50 has not been satisfied in this case.

My difference of view from the majority is very simply stated. The statute says there must be some additional proof of the commission of a crime other than a defendant’s confession or admission (CPL 60.50). While that safeguard, designed essentially to protect unfortunate individuals from their own criminal fantasies, calls for the tiniest corroborative proof among the varieties of corroboration (People v Daniels, 37 NY2d 624, 629; Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 60.50, p 678), it does require something relevant and additional. The majority, with respect, applies the facts and evidence in this case in such a way as to render that statutory safeguard ineffectual.

The crime here is drunk driving. The essence or corpus delicti of that crime is, not surprisingly, "driving while drunk” or, technically, driving while ability is impaired.

In addition to the defendant’s admission to the police officer at the scene, upon being asked who the driver was (he did not volunteer the information), we have presented to us only these utterly equivocal innocent facts: the defendant and two other persons, a male and female, were standing beside a car in a ditch off the road facing the opposite direction and the car was registered to the defendant’s father. I am unable to see how those facts blown together in some amorphous mist constitute anything close to the crime of drunk driving by anyone, no less by this defendant. The number of noncriminal inferences and hypotheses arising from that mist is almost limitless as any experienced driver or even law enforcement professionals will attest. The specific inference that this particular crime, driving while impaired, was committed by anyone has not been independently proven. This recognizes that the People do not have to prove that this defendant was the driver, as that is not an element that needs to be corroborated in this instance. That such a crime could have been committed I will concede, but that is not enough and that is not what the statute demands.

We applied these principles very plainly with respect to the predecessor statute in distinguishing weight of evidence from sufficiency of evidence for purposes of this very corroboration rule (People v Cuozzo, 292 NY 85, 93-95). Also, the majority’s misplaced emphasis on People v Lipsky (57 NY2d 560) is answered and distinguished simply by the fact that there the prosecution independently and circumstantially proved the criminal agency and the homicide, the corpus delicti of that crime, even though the human body was never found.

This court should not be deterred from applying this procedural prophylaxis according to the plain meaning of the statute just because the prosecution’s burden in many of these cases might be made more difficult. Indeed, the publicly and statutorily induced campaigns for rigorous enforcement of drunk driving offenses, laudable as they are, require a proportionate and judicious neutralization against excessive zeal at the expense of the rights of those affected with potentially serious criminal and even felony prosecutions and records. I am confident that law enforcement officials will be able to enforce properly not only the new and more serious drunk driving laws but also can concomitantly safeguard the procedural rights of all citizens affected by all these laws. In my view, the majority’s application of the facts of this case deprives defendant of the protection afforded by CPL 60.50.

Accordingly, I respectfully dissent and vote to affirm the dismissal of the charge by the County Court in its role as an intermediate appellate court.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone and Hancock, Jr., concur with Judge Simons; Judge Bellacosa dissents and votes to affirm in a separate opinion.

Order reversed, etc.  