People v. Agudio

• Decision Date: 20 May 2021
• Docket Number: 111292
• Citation: 194 A.D.3d 1270,149 N.Y.S.3d 326
• Parties: The PEOPLE of the State of New York, Respondent, v. Ariel AGUDIO, Appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1270

149 N.Y.S.3d 326

The PEOPLE of the State of New York, Respondent,

v.Ariel AGUDIO, Appellant.

111292

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 8, 2021

Decided and Entered: May 20, 2021

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.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered June 16, 2017 in Albany County, upon a verdict convicting defendant of the crime of falsely reporting an incident in the third degree (two counts).

In April 2016, defendant was charged in an 11–count indictment with one count of assault in the third degree, three counts of attempted assault in the third degree, three counts of harassment in the second degree and four counts of falsely reporting an incident in the third degree for her involvement in, and subsequent reporting of, an altercation that occurred on a city bus bound for the State University of New York at Albany (hereinafter SUNY Albany) campus. After four counts were dismissed, the trial proceeded on the remaining counts, some of which were renumbered. 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 and called [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 an appearance at an event on the SUNY Albany campus, that she was the victim of a racially-motivated assault on a bus. Following a jury trial, defendant and codefendant Asha Burwell were convicted of counts 4 and 7 and acquitted of the remaining charges.¹ Defendant joined in Burwell's motion to dismiss and/or set aside the verdict pursuant to CPL 330.30(1), alleging, among other things, that the verdict was repugnant as a matter of law and that count 7 impermissibly infringed upon her First Amendment right of free speech. Supreme Court denied the motion in its entirety and 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 is against the weight of the evidence. "When reviewing the legal sufficiency of the evidence, this Court must view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crimes charged" ( People v. Rudge, 185 A.D.3d 1214, 1215, 126 N.Y.S.3d 247 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 393, 152 N.E.3d 1195 [2020] ; see People v. Hilton, 185 A.D.3d 1147, 1148, 126 N.Y.S.3d 242 [2020], lv denied 35 N.Y.3d 1095, 131 N.Y.S.3d 302, 155 N.E.3d 795 [2020] ). In contrast, when conducting a weight of the evidence review, we must "view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Caden N., 189 A.D.3d 84, 89, 133 N.Y.S.3d 107 [2020] [internal quotation marks, brackets and citations omitted], lv denied 36 N.Y.3d 1050, 140 N.Y.S.3d 891, 164 N.E.3d 978 [2021] ; see People v. Callahan, 186 A.D.3d 943, 943–944, 128 N.Y.S.3d 370 [2020] ; People v. McCabe, 182 A.D.3d 772, 773, 122 N.Y.S.3d 757 [2020] ; People v. McCoy, 169 A.D.3d 1260, 1261–1262, 95 N.Y.S.3d 441 [2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019] ). As relevant here, "[a] person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he or she ... [i]nitiates or circulates a false report ... of an alleged occurrence ... of a crime ... under circumstances in which 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 A.D.3d 173, 176–179, 122 N.Y.S.3d 419 [2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 861, 151 N.E.3d 542 [2020] ). The trial testimony of the People's witnesses revealed that, at approximately 1:00 a.m. on the night of the incident, defendant, Burwell and Alexis Briggs² were on the route No. 11 bus that was traveling from the downtown area of the City of Albany towards the SUNY Albany campus. Most of the passengers were SUNY Albany students. A verbal altercation arose when defendant was unsuccessful in her attempt to stop Mary Glisson, a rear seat passenger that boarded the bus after consuming two beers, from singing "99 Bottles of Beer on the Wall." Testimony revealed that defendant 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 the face. 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 to her 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 loudly and annoyingly and their inability, as black women, to object to the singing. Benta Nkromah, also present, 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 racial comments.

Bianca Deleon, who was sitting in the rear of the bus, testified that defendant, Burwell and Briggs called Glisson and the other rear passengers "white bitch, bitches." Mark Pronovost testified that he attempted to ascertain the basis of the heated verbal 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 visibly annoyed by Glisson's singing. He recounted that defendant responded by saying, "[B]ecause I'm black ... 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're ignorant, 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 physical altercation. Abdul Keiateh and Nathan Felon testified that they did not hear the racial slur, did not 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 were not singing. He testified that he did not hear the racial slur or any racial epithets and did not witness any males striking females.

David Ray, a 911 dispatcher with the Town of Colonie Police Department, testified that defendant called 911 following the incident and, before he answered the call, he heard defendant say, "I was beating the shit out of that bitch ... I had three of them down." After Ray 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 were calling us [the racial slur] and all this stuff. And if someone doesn't come and take this down or something, I am going to call the news because it was ridiculous. They ripped out all of our hair and everything." After Ray got the call, the call was transferred to several police agencies – the City of Albany Police Department, the SUNY Albany police and the Albany County Sheriff's Office. Derrick Oxintine Jr., a 911 dispatcher, testified that, upon receiving defendant's call, defendant provided her location and then stated aloud to one of her friends, "I know I have a black eye, but I think it's funny how I had three bitches down." When speaking to someone with the SUNY Albany police, defendant essentially reiterated the report that she had made to Ray, adding that "[t]he cops weren't called because we're black, so the cops weren't called."

David Chase, a 911 dispatcher with the Albany County Sheriff's Office, testified that defendant reported to him that she "got jumped on a bus in Albany." Joseph Leigh...