People v. Burwell

• Decision Date: 09 April 2020
• Docket Number: 111255
• Citation: 122 N.Y.S.3d 419,183 A.D.3d 173
• Parties: The PEOPLE of the State of New York, Respondent, v. Asha BURWELL, Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 173

122 N.Y.S.3d 419

The PEOPLE of the State of New York, Respondent,

v.Asha BURWELL, Appellant.

111255

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

Calendar Date: February 19, 2020

Decided and Entered: April 9, 2020

Frederick K. Brewington, Hempstead, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Garry, P.J., Clark, Devine, Pritzker and Colangelo, JJ.

OPINION AND ORDER

Pritzker, 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 2016, defendant was charged in an 11–count indictment with assault in the third degree, harassment in the second degree and four counts of falsely reporting an incident in the third degree for her involvement in an altercation and its aftereffects that occurred on a city bus bound for the State University of New York at Albany (hereinafter SUNY Albany) campus. The indictment 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 a ‘nigger’ " (count 4).¹ The indictment also set forth that defendant, knowing the information to be false, circulated – via social media and through an appearance at an event on the SUNY Albany campus – an allegation that she was the victim of a racially-motivated assault on a bus (count 7). After a jury trial, defendant was convicted of two counts of falsely reporting an incident in the third degree (counts 4 and 7). Defendant moved to dismiss the indictment and/or set aside the verdict pursuant to CPL 330.30(1), alleging, among other things, that count 7 impermissibly infringed upon her First Amendment right of free speech. At sentencing, the Supreme Court denied the motion in its entirety and thereafter sentenced defendant to concurrent terms of three years of probation on each count, 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. "In reviewing a legal sufficiency claim, [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 crime[s] charged" ( People v. Haynes , 177 A.D.3d 1194, 1195, 113 N.Y.S.3d 776 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 1128, 118 N.Y.S.3d 543, 141 N.E.3d 499 [2020] ; see People v. Colon, 177 A.D.3d 1086, 1087, 113 N.Y.S.3d 389 [2019] ). In contrast, "[t]o determine whether a verdict is against the weight of the evidence, this Court must first decide whether, based on all the credible evidence, a different finding would not have been unreasonable, and [if not] then, viewing the evidence in a neutral light and deferring to the jury's credibility assessments, weigh the relative probative force of the conflicting testimony and the relative strength of the conflicting inferences that may be drawn from the testimony" ( People v. Tromans, 177 A.D.3d 1103, 1103–1104, 114 N.Y.S.3d 487 [2019] [internal quotation marks and citations omitted]; see People v. Saunders, 176 A.D.3d 1384, 1385–1386, 111 N.Y.S.3d 445 [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 ... [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] ) or "[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] ).

Testimony of the People's witnesses at trial revealed that, on the night of the incident, the route number 11 bus operated by the Capital District Transportation Authority (hereinafter CDTA) was travelling towards SUNY Albany at approximately 1:00 a.m., and the passengers on the bus were almost exclusively SUNY Albany students. Testimony revealed that a verbal altercation arose when defendant requested that a passenger stop singing in exchange for a sandwich and a heated conversation regarding differential treatment on the basis of race ensued between defendant and several passengers. The verbal altercation escalated when defendant and her friends rose from their seats and approached a girl seated in the back of the bus. The evidence demonstrates that a physical altercation between two girls – Ariel Agudio, one of defendant's friends, and a passenger – resulted. Multiple videos depicting the incident were admitted into evidence. One of these videos consists of footage gathered from eight cameras and three microphones on the bus. Although the bus cameras depict the incident from various angles, only portions of the incident were actually captured and the audio of the incident is largely undecipherable, with the exception of ambient background noise and occasional words and phrases. None of the decipherable words was the "N-word." Video footage of the incident recorded by four individuals on the bus was also admitted at trial, each depicting small portions of the incident. Although the audio is slightly better than that of the bus videos, it is not possible to clearly discern every word that was said during the incident. Again, of the words and phrases that can be deciphered in these videos, none was the "N-word." As established by this video footage and the testimony, once the physical altercation began, several passengers intervened, resulting in defendant, her friends and other passengers being pushed and pulled and Agudio's clip-in hair extensions being torn from her head.

Approximately 18 SUNY Albany students testified about the incident, some of whom were directly involved and others were merely observers. One of these students, Mary Glisson, testified that she was sitting in the back of the bus singing "99 Bottles of Beer on the Wall" and that her singing annoyed defendant and two of her friends – one of whom offered to give her a sandwich if she would "shut up." Glisson testified that a friend of hers yelled, "you're f***ing ignorant, get a job" to the group of women who offered the sandwich. Thereafter, Glisson recalls her friend getting punched in the face, though she did not see by whom, and that, during the incident, she heard the term "white ignorant bitch." Glisson also testified that, preceding the altercation, defendant and her friends made statements about Glisson's ability to sing loudly and annoyingly as a white woman and their inability to object to it as black women. Mark Pronovost, who was also present during the incident, testified that he engaged in a conversation about race with defendant and her friends during the verbal argument, prior to the physical altercation. Pronovost explained that he attempted to discern the substance of the verbal argument and one girl stated that it was a "black issue." Pronovost testified that he did not hear any racial terms used during the incident. Gabrielle Camacho, who was also present during the incident, testified that, upon hearing a discussion regarding "ignorant bitches," she cut defendant and her friends off by stating, "[A]re you f***ing kidding me, you're ignorant, shut the f*** up and get a job." Thereafter, Agudio stood up, approached Camacho and the physical altercation ensued. Camacho testified that she did not hear any racial slurs. The majority of the remaining SUNY Albany students who testified stated that they did not witness any males striking females and that they did not hear the "N-word" or other racial slurs used. However, two witnesses did testify to hearing the word "whale" and another witness testified to hearing the word "ratchet." One witness testified that he did not hear any racial slurs, but, in the days after the incident, he "heard" others saying that they may have heard the "N-word."

Lisa Johnson, a 911 dispatcher with the Albany County Sheriff's office, testified that defendant called 911 following the incident and stated, "I'd like to report the fact that me and my friends were just jumped on a bus for being black." Defendant told Johnson that she and her friends were on a bus going to SUNY Albany. Due to confusion as to where the incident occurred, defendant's call was transferred to police for the City of Albany. An employee of the City of Albany testified that, after she received defendant's call, defendant identified herself and stated that "me and my friends were jumped on a bus because we're black." Defendant continued on to say, "These girls ... they were calling us the ‘N’ word and hitting us and so were guys[,] and the bus driver didn't do anything about it until we got to campus, and he stopped the bus and still ... guys continued to hit us in the face." Benjamin Nagy, an investigator with the SUNY Albany police, testified that he conducted a recorded interview with defendant following the incident.² During her interview, defendant informed Nagy that she heard the "N-word" twice during the incident and that defendant was the only individual to provide him with information that that word was used. An inspector with the SUNY Albany police also testified, explaining that, in the course of his investigation, an individual who was on the bus stated that he did not hear the "N-word," but that other people said they had heard it.

The People also admitted various statements,...