| People v Agudio |
| 2021 NY Slip Op 03224 [194 AD3d 1270] |
| May 20, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ariel Agudio, Appellant. |
Law Office of Mark S. Mishler, PC, Albany (Mark S. Mishler of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Colangelo, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered June16, 2017 in Albany County, upon a verdict convicting defendant of the crime of falsely reportingan incident in the third degree (two counts).
In April 2016, defendant was charged in an 11-count indictment with one count of assault inthe third degree, three counts of attempted assault in the third degree, three counts of harassmentin the second degree and four counts of falsely reporting an incident in the third degree for herinvolvement in, and subsequent reporting of, an altercation that occurred on a city bus bound forthe State University of New York at Albany (hereinafter SUNY Albany) campus. After fourcounts were dismissed, the trial proceeded on the remaining counts, some of which wererenumbered. As relevant here, the renumbered indictment charged defendant, in counts 4 and 7,with falsely reporting an incident in the third degree. Specifically, count 4 alleged that defendant,knowing the information to be false, reported, via an emergency 911 call, that "she was 'jumped'on a bus by a group of males, that it was a racial crime, and that she was struck by boys andcalled [the] '[N-word]' " (hereinafter the racial slur). Count 7 alleged that defendant,knowing the information to be false, circulated an allegation, via social media and through anappearance at an event on the SUNY Albany campus, that she was the victim of aracially-motivated assault on a bus. Following a jury trial, defendant and codefendant AshaBurwell were convicted of counts 4 and 7 and acquitted of the remaining charges.[FN1] Defendant joined in Burwell'smotion to dismiss and/or set aside the verdict pursuant to CPL 330.30 (1), alleging, among otherthings, that the verdict was repugnant as a matter of law and that count 7 impermissibly infringedupon her First Amendment right of free speech. Supreme Court denied the motion in its entiretyand sentenced defendant to concurrent terms of three years of probation on each conviction,assessed a fine and ordered community service. Defendant appeals.
Defendant contends that the verdict is not supported by legally sufficient evidence and isagainst the weight of the evidence. "When reviewing the legal sufficiency of the evidence, thisCourt must view the evidence in the light most favorable to the People and evaluate whetherthere is any valid line of reasoning and permissible inferences which could lead a rational personto the conclusion reached by the jury on the basis of the evidence at trial and as a matter of lawsatisfy the proof and burden requirements for every element of the crimes charged" (People v Rudge, 185 AD3d 1214,1215 [2020] [internal quotation marks and citations omitted], lv denied 35 NY3d 1070[2020]; see People v Hilton, 185AD3d 1147, 1148 [2020], lv denied 35 NY3d 1095 [2020]). In contrast, whenconducting a weight of the evidence review, we must "view the evidence in a neutral light anddetermine first whether a [*2]different verdict would have beenunreasonable and, if not, then weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony to determine ifthe verdict is supported by the weight of the evidence" (People v Caden N., 189 AD3d 84, 89 [2020] [internal quotationmarks, brackets and citations omitted], lv denied 36 NY3d 1050 [2021]; see People v Callahan, 186 AD3d943, 943-944 [2020]; People vMcCabe, 182 AD3d 772, 773 [2020]; People v McCoy, 169 AD3d 1260, 1261-1262 [2019], lvdenied 33 NY3d 1033 [2019]). As relevant here, "[a] person is guilty of falsely reporting anincident in the third degree when, knowing the information reported, conveyed or circulated to befalse or baseless, he or she . . . [i]nitiates or circulates a false report . . .of an alleged occurrence . . . of a crime . . . under circumstances inwhich it is not unlikely that public alarm or inconvenience will result" (Penal Law§ 240.50 [1]) or "[g]ratuitously reports to a law enforcement officer or agency. . . false information relating to an actual offense or incident" (Penal Law§ 240.50 [3] [c]).
The factual background is substantially similar to that set forth in our decision in People v Burwell (183 AD3d 173,176-179 [2020], lv denied 35 NY3d 1043 [2020]). The trial testimony of the People'switnesses revealed that, at approximately 1:00 a.m. on the night of the incident, defendant,Burwell and Alexis Briggs[FN2] were on the route No. 11 bus that was travelingfrom the downtown area of the City of Albany towards the SUNY Albany campus. Most of thepassengers were SUNY Albany students. A verbal altercation arose when defendant wasunsuccessful in her attempt to stop Mary Glisson, a rear seat passenger that boarded the bus afterconsuming two beers, from singing "99 Bottles of Beer on the Wall." Testimony revealed thatdefendant stood up and yelled at Glisson to be quiet, stating, "I'm from Long Island, I can f***you up." Glisson testified that her friend, Gabrielle Camacho, yelled, "you're f***ing ignorant,get a job" to defendant, Burwell and Briggs, and that, thereafter, Camacho was punched in theface. Glisson further testified that, during the incident, she heard the term "white ignorant bitch."Glisson testified that she was hit, but could not identify who hit her, and she sustained injuries toher hands and knuckles. Glisson recounted that, prior to the physical altercation, defendant,Burwell and Briggs made comments about Glisson's ability, as a white woman, to sing loudlyand annoyingly and their inability, as black women, to object to the singing. Benta Nkromah, alsopresent, testified that defendant and Burwell attacked Glisson and that she heard defendant say"stupid white bitches" before the attack. Nkromah testified that she did not hear any other racialcomments.
Bianca Deleon, who was sitting in the rear of the bus, testified that defendant, Burwell andBriggs [*3]called Glisson and the other rear passengers "whitebitch, bitches." Mark Pronovost testified that he attempted to ascertain the basis of the heatedverbal exchanges between the different groups on the bus and was told that it was a "black issue."Pronovost was among the passengers who asked defendant to sit down when she became visiblyannoyed by Glisson's singing. He recounted that defendant responded by saying, "[B]ecause I'mblack . . . I can't say anything." Camacho testified that she heard the comment"ignorant bitches" and told defendant, Burwell and Briggs "are you f***ing kidding me, you'reignorant, shut the f*** up and get a job." Deleon testified that after Camacho's comment,defendant, Burwell and Briggs stood up, went to the rear of the bus and initiated the physicalaltercation. Abdul Keiateh and Nathan Felon testified that they did not hear the racial slur, didnot hear other racial epithets and did not see males striking females during the altercation.Russell Norowitz testified that the physical altercation was initiated by a group of girls who werenot singing. He testified that he did not hear the racial slur or any racial epithets and did notwitness any males striking females.
David Ray, a 911 dispatcher with the Town of Colonie Police Department, testified thatdefendant called 911 following the incident and, before he answered the call, he heard defendantsay, "I was beating the shit out of that bitch . . . I had three of them down." AfterRay answered the call, defendant stated, "I just got jumped on a bus and no one did anything."Defendant stated, "Me and my three friends got jumped. It was a racial crime and they werecalling us [the racial slur] and all this stuff. And if someone doesn't come and take this down orsomething, I am going to call the news because it was ridiculous. They ripped out all of our hairand everything." After Ray got the call, the call was transferred to several policeagencies—the City of Albany Police Department, the SUNY Albany police and theAlbany County Sheriff's Office. Derrick Oxintine Jr., a 911 dispatcher, testified that, uponreceiving defendant's call, defendant provided her location and then stated aloud to one of herfriends, "I know I have a black eye, but I think it's funny how I had three bitches down." Whenspeaking to someone with the SUNY Albany police, defendant essentially reiterated the reportthat she had made to Ray, adding that "[t]he cops weren't called because we're black, so the copsweren't called."
David Chase, a 911 dispatcher with the Albany County Sheriff's Office, testified thatdefendant reported to him that she "got jumped on a bus in Albany." Joseph Leigh, a 911dispatcher with the City of Albany Police Department, testified that defendant reported, "I gotjumped on a bus" and then stated "all three of my friends were against 10 people and. . . it was a racially-fueled crime, we were three black girls jumped by like 20 whitepeople, so [*4]I think it's important that we call." Tracy Sandoval,a police officer with the City of Albany Police Department, testified that she responded todefendant's apartment following the incident and was told by defendant, Burwell and Briggs that"they were punched around the head and body by the white males and white females on the busand called . . . [the racial slur] and whales." Benjamin Nagy, an investigator with theSUNY Albany police, testified that he conducted a recorded interview with defendant followingthe incident and took a sworn written statement from defendant, both of which were admittedinto evidence. According to the written statement, defendant was told by her friends that theywere called the racial slur. Paul Burlingame, an inspector with the SUNY Albany police, testifiedthat, in the course of his investigation, a passenger on the bus stated that he did not hear the racialslur but other people said they heard it.
Defendant testified that, while sitting on the bus, she heard a girl singing loudly in the rear ofthe bus and Burwell offered the girl a sandwich in an attempt to stop the singing. Defendantrecounted that she heard the girl call her and her friends "ratchet bitches," which means "ghetto"and a phrase used to disparage black women. Defendant testified that she stood up and engagedin a "confrontational argument" with the girl and then sat back down after a bunch of guys toldher to "shut up" and "sit down." Defendant testified that she believed that she was told to shut upbecause she was black, since nothing was said to the white girl singing loudly. Defendanttestified that before she sat down, a male shouted "whale" and she confronted him too. Defendantrecounted that, after she sat down, she heard loud noises and screaming in the back of the busand saw that her friends were no longer seated. She turned to see the girl who was singing andother rear passengers fighting her friends. Defendant testified that she went to defend her friendsand became the target of a physical altercation that was in progress between the two groups ofgirls. Defendant testified that a crowd of people pushed her forward and she lost control and fellinto a seat. While kneeling in the seat, she was repeatedly punched and, at the same time, felt herhair extensions and some of her natural hair being pulled from her head by the four girls.Defendant also testified that she believed that guys were involved. Defendant testified that herfriends told her that they heard the racial slur used on the bus. Defendant testified that shebelieved that guys were involved in the altercation because "they were all around me andtouching me." Defendant admitted that when she stated to police that she was being repeatedlystruck by males, it was not true. Defendant testified that she tweeted and retweeted about theincident, including retweets of Burwell's tweets that essentially stated that she was a victim of aracially motivated assault [*5]on a bus and no one helped them.Multiple videos depicting the incident were captured by cameras and microphones on the bus andfootage recorded by four individuals on the bus. These videos were admitted into evidence at trialand, of the words that were decipherable, none was the racial slur.
The evidence at trial established that defendant was annoyed by singing on the bus andinitiated a verbal exchange that erupted into a physical altercation. Although defendant testifiedthat the racial slur was spoken, the remaining testimony and the video footage indicate that theracial slur was neither heard nor spoken. Defendant reported to police that she and her friendswere jumped on a bus on account of their race, that men and women participated in the assaultand that passengers called her the racial slur. The evidence further demonstrates that defendantposted on social media the account of the incident that she gave to police. Based upon theforegoing proof adduced at trial, we find that legally sufficient evidence exists to support bothcounts of falsely reporting an incident in the third degree (see People v Haynes, 177 AD3d 1194, 1195 [2019], lvdenied 34 NY3d 1128 [2020]; People v Colon, 177 AD3d 1086, 1088 [2019]). As to the weight ofthe evidence, although a different verdict would not have been unreasonable, as the jury couldhave credited defendant's version of events, we find that the jury's verdict is supported by theweight of the evidence (see People vWaheed, 176 AD3d 1510, 1512 [2019], lv denied 34 NY3d 1133 [2020]; People v Lentini, 163 AD3d 1052,1053-1054 [2018]).
Nevertheless, in People v Burwell (183 AD3d at 180-183), we held that Penal Law§ 240.50 (1), the basis of count 7, was unconstitutional as applied to Burwell'sposting of false tweets. As the content of defendant's tweets are substantially the same asBurwell's tweets, and in light of the People's concession that defendant's conviction on count 7requires reversal under the First Amendment, we modify the judgment by reversing defendant'sconviction on said count. Based upon this conclusion, defendant's remaining contentions as tocount 7 are rendered academic. Defendant's remaining argument that her conviction as to count 4is repugnant to her acquittal of count 5 was not preserved for our review through an appropriatetimely objection before the jury was discharged (see People v Howard, 175 AD3d 1620, 1621 [2019], lvdenied 34 NY3d 981 [2019]; Peoplev Maeweather, 172 AD3d 1646, 1649 [2019], lv denied 34 NY3d 1017[2019]).
Egan Jr., J.P., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment is modified,on the law, by reversing defendant's conviction of falsely reporting an incident in the third degreeunder count 7 of the indictment; said count dismissed and the sentence imposed thereon vacated;and, as so modified, affirmed.
Footnote 1:This Court affirmed Burwell'sconviction on count 4 and reversed her conviction on count 7 (People v Burwell, 183 AD3d 173[2020], lv denied 35 NY3d 1043 [2020]).
Footnote 2:Briggs was indicted along withdefendant and Burwell but pleaded guilty before trial.