        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1186
KA 16-00609
PRESENT: CARNI, J.P., NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

LAURA VIEIRA-SUAREZ, DEFENDANT-RESPONDENT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR APPELLANT.

TISDELL MOORE AND WALTER, SYRACUSE (ROBERT L. TISDELL OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Onondaga County Court (Thomas J.
Miller, J.), dated September 14, 2015. The order, insofar as appealed
from, granted that part of the motion of defendant seeking to dismiss
the first count of the indictment.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law, that part of defendant’s omnibus
motion seeking to dismiss the first count of the indictment is denied,
that count is reinstated, and the matter is remitted to Onondaga
County Court for further proceedings on the indictment.

     Memorandum: The People appeal from an order granting defendant’s
motion to dismiss the first count of the indictment, which charged her
with perjury in the first degree (Penal Law § 210.15), on the ground
that the evidence before the grand jury is legally insufficient to
establish that offense or any lesser included offense (see CPL 210.20
[1] [b]). The People contend that County Court erred in dismissing
that count because the evidence satisfies the elements of perjury and
might warrant a conviction, and because there is sufficient
corroboration that defendant testified falsely. We agree.

     Pursuant to Penal Law § 210.15, one “is guilty of perjury in the
first degree when he [or she] swears falsely and when his [or her]
false statement (a) consists of testimony, and (b) is material to the
action, proceeding or matter in which it is made.” Penal Law § 210.50
states, “In any prosecution for perjury, except a prosecution based
upon inconsistent statements pursuant to section 210.20 . . . ,
falsity of a statement may not be established by the uncorroborated
testimony of a single witness.” In reviewing the sufficiency of the
evidence presented to the grand jury, the court must view it in the
light most favorable to the People (see People v Bello, 92 NY2d 523,
525; People v Jennings, 69 NY2d 103, 114). Evidence is legally
                                 -2-                          1186
                                                         KA 16-00609

sufficient where it is “competent” and where it, “if accepted as true,
would establish every element of an offense charged and defendant’s
commission thereof; except that such evidence is not legally
sufficient when corroboration required by law is absent” (CPL 70.10
[1]). Thus, the question is whether the evidence adduced before the
grand jury, if unexplained and uncontradicted, would warrant
conviction by a petit jury (see Jennings, 69 NY2d at 115; People v
Pelchat, 62 NY2d 97, 105).

     Here, we conclude that the evidence, if accepted as true by a
petit jury, would establish every element of perjury in the first
degree and defendant’s commission of that crime. In particular, the
grand jury evidence demonstrates that defendant made statements under
oath that were material to a prior grand jury proceeding, and tends to
show that some such statements were false and were believed by
defendant to be false at the time she made them (see Penal Law
§ 210.15; see also § 210.00 [5]). We further conclude that there is
sufficient corroboration of the testimony of at least one witness
tending to establish the falsity of defendant’s statement before the
first grand jury that she “did not instruct anybody” to use the
subject room as a “time-out” room for the student in question or to
place the student in that room (see § 210.50; see generally People v
Rosner, 67 NY2d 290, 294-296; People v Sabella, 35 NY2d 158, 168-169).
Specifically, defendant’s statement before the first grand jury that
she “did not instruct anybody” was refuted by the testimony of the
acting vice-principal before the second grand jury that defendant had
so instructed the acting vice-principal, and it likewise was refuted
by the testimony of the school nurse before the second grand jury that
defendant had so instructed the school nurse. Thus, there is
corroborative proof “sufficient to connect the accused with the
perpetration of the offense and [to] lead to the inference of guilt”
(People v Skibinski, 55 AD2d, 48, 51; see People v Fitzpatrick, 47
AD2d 70, 71, revd on other grounds 40 NY2d 44), and to thereby satisfy
the factfinder that either of those witnesses against defendant was
telling the truth (see Sabella, 35 NY2d at 168; Fitzpatrick, 47 AD2d
at 71). In other words, we conclude that the testimony of either
witness suffices to corroborate the testimony of the other witness
(see CPL 210.50).

     We agree with the court, however, that the evidence before the
grand jury is legally insufficient to establish that defendant
testified before the first grand jury, whether falsely or not, that
she lacked any knowledge of the room’s being used as a time-out room.
Therefore, as to that specification of perjury set forth in the
People’s bill of particulars, the charge of perjury against defendant
cannot stand.




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
