| People v Taylor |
| 2010 NY Slip Op 09376 [79 AD3d 944] |
| December 17, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RobertTaylor, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill,and Brooke E. Barnes of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered March 24, 2009, convicting him of falsely reporting an incident in the third degree (twocounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In the early morning hours of May 6, 2007, the defendant appeared at Queens General Hospitalfor treatment of a gunshot wound to his left foot. After the hospital notified the police, New York CityPolice Officer Warren Savage responded to the hospital, and asked the defendant what had happened.The defendant answered that, while he was standing on the corner of 157th Street and South Road inJamaica, Queens, an unknown black male fired shots at the ground, and he was struck in the foot. Thedefendant was subsequently transferred to another hospital, where he gave a similar account to NewYork City Police Detective Charles LoPresti. Detective LoPresti told the defendant that he did notbelieve his story and warned the defendant that if his account proved to be false, he would be chargedwith filing a false police report. The defendant then changed his story, and told Detective LoPresti thathe had been drinking in a bar on Linden Boulevard, between 111th and 116th Streets, a location withinthe 113th Precinct. He stated that, when he left the bar, he was shot by someone he did not see. Thedefendant wrote out this account in Detective LoPresti's presence.
Detective LoPresti notified the 113th Precinct, and Detective Daniel Bendig came to the hospitaland questioned the defendant. The defendant changed his story again, this time telling Detective Bendigthat he had been at a house near 107th Avenue and 105th Street watching a boxing match, when he gotinto an altercation over a bet with a man named "Drew Hamilton," who pulled out a gun and shot him inthe foot. Detective Bendig subsequently initiated efforts to locate "Drew Hamilton." His computercheck, however, produced no information. After the defendant was [*2]released from the hospital, Detective LoPresti reinterviewed him. Thistime, the defendant admitted, in another written statement, that he had been drinking in a bar nearSutphin and Linden Boulevards in Jamaica, became intoxicated, and shot himself in the foot when hedropped his .22 caliber handgun while leaving the bar.
The defendant was subsequently indicted for criminal possession of a weapon in the seconddegree, criminal possession of a weapon in the third degree, and two counts of falsely reporting anincident in the third degree. At trial, the People presented evidence of the police investigation and thedefendant's statements. Testifying in his own behalf, the defendant told the jury that his father had shothim during an argument, and that he had inculpated himself only to protect his father. The defendantacknowledged that he had made the earlier false statements to Detectives LoPresti and Bendig.
In summation, defense counsel focused entirely on the weapon possession counts and did notaddress the two counts of falsely reporting an incident in the third degree. The People addressed thelatter counts only briefly, arguing, inter alia, that the defendant had admitted at trial that the statementswere false:
"He told the police it's false and he admitted to you on the stand that he freely and voluntarily wroteout that statement and it was a complete lie.
"So, he's got both counts of falsely reporting an incident to the police, without any doubt. He knewthose statements were false and he told the police the statement [sic] anyway.
"Right there, guilty of Counts III and IV of the indictment. It doesn't matter why he lied, ladies andgentlemen. He lied, he is guilty, end of story."
With respect to the two counts of falsely reporting an incident in the third degree, the SupremeCourt instructed the jury as follows:
"Under our law a person is guilty of falsely reporting an incident in the third degree, when knowingthe information reported, conveyed or circumstances relayed to be false, he gratuitously reports to alaw enforcement agency the alleged occurrence of the offense which did not in fact occur. . . [The People] under the third count are required to prove, from all of the evidence,beyond a reasonable doubt two elements: One, that on or about May 6, 2007, in the County ofQueens, the defendant falsely reported information regarding an offense or incident to law enforcementinformation which did not occur within the confines of the 103rd Precinct; and two: He did soknowingly.
"If you find the People have proven both of these elements beyond a reasonable doubt under thethird element, you must find the defendant guilty.
"The elements are the same. The two elements the People must prove beyond a reasonable doubt,one, on or about May 6, 2007, in our County of Queens this defendant falsely reported informationregarding an offense to law enforcement agencies that did not occur—that's from the 103rdPrecinct—and, secondly, he did so knowingly. The fourth count is the exact same elements butin the confines of the 113th Precinct, and did so knowingly."[*3]
Defense counsel raised no objection to the charge. Later, whenthe jury asked for a "breakdown" of the elements of the two counts of falsely reporting an incident in thethird degree, the Supreme Court instructed: "The elements are the same. The two elements the Peoplemust prove beyond a reasonable doubt, one, on or about May 6, 2007, in our County of Queens thisdefendant falsely reported information regarding an offense to law enforcement agencies that did notoccur that's from the 103rd Precinct—and, secondly, he did so knowingly. The fourth count isthe exact same elements but in the confines of the 113th Precinct, and did so knowingly."
Again, the defendant failed to object. After further deliberations, the jury acquitted the defendant ofcriminal possession of a weapon in the second degree and criminal possession of a weapon in the thirddegree, but convicted him of both misdemeanor counts of falsely reporting an incident in the thirddegree.
The defendant does not dispute that the Supreme Court correctly defined the crime of falselyreporting an incident in the third degree by instructing the jury that a person is guilty of that crime "when,knowing the information reported, conveyed or [circumstances relayed] to be false . . . he. . . [g]ratuitously reports to a law enforcement . . . agency . . .the alleged occurrence of [the] offense . . . which did not in fact occur" (Penal Law§ 240.50 [3] [a]). In describing the elements of the crime, however, the Supreme Courtinstructed the jury that "[t]he two elements the People must prove beyond a reasonable doubt, one, onor about May 6, 2007, in our County of Queens this defendant falsely reported information regardingan offense to law enforcement agencies that did not occur . . . and, secondly, he did soknowingly." The defendant argues that the Supreme Court erred in omitting the element that the falsereport must be "gratuitously" made. The defendant, however, did not object to the Supreme Court'sfailure to include, as an element of the crime, that the false reports were made "gratuitously," and wereject the defendant's request that we exercise our interest of justice jurisdiction to review his claimregarding the Supreme Court's charge.
The defendant further contends that the evidence was legally insufficient to establish his guilt offalsely reporting an incident in the third degree. In People v Dekle (56 NY2d 835, 837[1982]), the Court of Appeals wrote: "[There is no] due process violation when there is evidence fromwhich a rational trier of fact could find the essential elements of the crime as those elements werecharged to the jury without exception beyond a reasonable doubt. There is neither constitutionalnor jurisprudential error in permitting guilt to be determined under a penal statute as construed by thecommon assumption of both attorneys and the court. To hold otherwise is to encourage gamesmanshipand waste judicial resources in order to protect a defendant against a claimed error protection againstwhich requires no more than a specific objection on his part." Here, measured against the elements ascharged to the jury without exception, the evidence was legally sufficient to establish the defendant'sguilt beyond a reasonable doubt (see Peoplev Ford, 11 NY3d 875, 878 [2008]; People v Sala, 95 NY2d 254 [2000];People v Udzinski, 146 AD2d 245, 251 [1989]).
The defendant's remaining contention is without merit. Skelos, J.P., Fisher and Angiolillo, JJ.,concur.
Leventhal, J., dissents, and votes to reverse the judgment appealed from, on the law and as amatter of discretion in the interest of justice, and to dismiss counts three and four of the indictment, withthe following memorandum, in which Santucci, J., concurs: I respectfully dissent. Although the trial courtinitially provided the jury with the correct charge in describing the elements of the crime of falselyreporting an incident in the third degree (see Penal Law § 240.50 [3] [a]), the trial courtsubsequently erred when it later omitted the element that the false report must be "gratuitously" made.Thereafter, upon a jury verdict, the defendant was convicted of two counts of falsely reporting anincident in the third degree. As the defendant acknowledges, this contention is unpreserved forappellate review (see CPL 470.05 [2]), but I would reach it in the exercise of our interest ofjustice jurisdiction and reverse the judgment of conviction.
Among other cases, the majority relies upon People v Dekle (56 NY2d 835 [1982]) toconclude that the evidence was legally sufficient to establish the defendant's guilt of falsely reporting anincident in the third degree beyond a reasonable doubt. In Dekle, the defendant moved for atrial order of dismissal of a robbery count on the ground that there was no possibility of the existence ofan "immediate" threat of use of physical force since the defendant was unable to open a folded knifethat required two hands to open, and the defendant had only one hand free. The trial court denied thedefendant's motion, charging the jury that "immediate" had its ordinary meaning, and did not requireproof of a specific, limited lapse of time, measured from the onset of the altercation, in order to convicthim. The defendant did not object to that definition. On appeal, the defendant argued, for the first time,that the trial court should have charged the jury that the word "immediate" requires some minimaltemporal and geographic proximity to the taking of the property. Dekle is distinguishable fromthe instant case, as the Court of Appeals does not have interest of justice jurisdiction. Moreover, inDekle, the trial court did charge the jury with respect to all of the elements of the crime,whereas the trial court here failed to include the element of gratuitousness in the subject charge.
Although the word "gratuitously" is undefined in the Penal Law, this Court has held that a defendantdoes not commit the crime of falsely reporting an incident in the third degree when the defendant doesnot initiate contact with the police and merely gives false information in response to an officer's inquiries(see People v Clairborne, 36 AD2d 500 [1971], revd on other grounds 29 NY2d 950[1972]; cf. People v Ellis, 77 AD3d496 [2010] [evidence established that a defendant's 911 call in which he reported an assault thatdid not occur was a "gratuitous" report within the meaning of Penal Law § 240.50 (3), where noone compelled the defendant to place the call and the defendant's supervisor, at most, suggested that hedo so]). Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), the evidence was legally insufficient to support thedefendant's convictions beyond a reasonable doubt. Under the circumstances, it cannot be said that thedefendant "gratuitously" reported false information to the police (see Penal Law §240.50 [3] [a]; People v Clairborne, 36 AD2d 500 [1971]; People v Oliver, 193Misc 2d 250 [2002]; People v Li, 192 Misc 2d 380 [2002]; People ex rel. Morris vSkinner, 67 Misc 2d 221 [1971]).
Moreover, even assuming that the evidence was legally sufficient, I believe that the defendant wasalso deprived of his right to a fair trial because the trial court failed to adequately "state the material legalprinciples applicable to [this] case" (CPL 300.10 [2]; see People v Cordes, 71 AD3d 912 [2010]; People v Alvarez,96 AD2d 864, 865 [1983]; People v Davila, 59 AD2d 536, 537 [1977]). As the evidence ofthe defendant's guilt was not overwhelming, harmless error analysis is inapplicable (see People vCrimmins, 36 NY2d 230, 241 [1975]). Inasmuch as the defendant has already completed hissentence, the appropriate remedy is not a new trial but the dismissal of counts three and four of theindictment charging him with violating Penal Law § 240.50 (3) (a) (see People v Flynn,79 NY2d 879, 882 [1992]; People v Simmons, 32 NY2d 250, 253 [1973]; People v Barreto, 70 AD3d 959,959-960 [2010]).