In People v Kolupa (59 AD3d 1134 [4th Dept 2009])the Fourth Department split 3-2 on whether there was sufficient corroboration of unsworn testimony of a 7-year-old to support conviction for attempted rape, criminal sex act 1st degree and sexual abuse in the 1st degree. The purported corroboration was Mr. Kolupa’s statement that he had exposed himself to the boy - a statement that did not mention any touching or physical act.

The three judge majority held that this constituted sufficient corroboration. The dissenting justices disagreed, reasoning that the statement only corroborated lesser crimes and not the crimes charged. One of the dissenting justices granted leave to appeal to the Court of Appeals, which decided the case this week.

Who was right? Hard to tell, since the

Defendant failed to preserve his argument that the People introduced insufficient evidence to corroborate the child victim's testimony. At the close of the People's case, the trial court denied defendant's motion to dismiss and defendant proceeded to present his own evidence. He did not thereafter renew the motion to dismiss at the close of his proof or specifically argue that there was not sufficient corroboration of the victim's statements. As a result, this issue is not reviewable (see e.g. People v Lane, 7 NY3d 888, 889 [2006]; People v Payne, 3 NY3d 266, 273 [2004]; People v Hines, 97 NY2d 56, 61-62 [2001]).

People v Kolupa, __ NY3d __, 2009 NY Slip Op 06586 [September 22, 2009].

Would you want to be the attorney calling Mr. Kolupa (in a correctional facility) to explain this result? Or the trial attorney who caused this result by failing to make a proper motion? Or Mr. Kolupa?

Since failure to abide by the requirements of Hines is all too common a problem it is perhaps hopeful that in a concurring decision Judge Smith wrote that

Today's decision correctly applies People v Hines (97 NY2d 56, 61-62 [2001]). I have expressed my unhappiness with Hines before (People v Payne, 3 NY3d 266, 273 [2004] [R. S. Smith, J. concurring]), but this case, in which the Appellate Division did not mention preservation, defendant does not argue the issue, and the Appellate Division's decision on the merits seems clearly correct, is not the right one for further examination of the Hines rule.