People v. Hanifin

• Decision Date: 28 October 2010
• Citation: 910 N.Y.S.2d 212,77 A.D.3d 1181
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas R. HANIFIN, Appellant.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 212

77 A.D.3d 1181

The PEOPLE of the State of New York, Respondent,

v.Thomas R. HANIFIN, Appellant.

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

Oct. 28, 2010.

Theresa M. Suozzi, Saratoga Springs, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: CARDONA, P.J., LAHTINEN, KAVANAGH, McCARTHY and EGAN JR., JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered February 19, 2009, upon a verdict convicting defendant of the crime of falsely reporting an incident in the second degree.

Defendant parked his car in the middle of Main Street in the Town of Union, Broome County in front of a business that, among other things, manufactures engine control systems for military purposes. He climbed on top of his car, poured asubstance from a gasoline can onto his head, called 911 and threatened to light himself on fire if the war in Iraq did not end by a certain time that day. Emergency personnel from numerous agencies responded. Eventually, the responders doused defendant with a fire hose, took him into custody and determined that the gasoline cans contained water. Following a trial, defendant was convicted of falsely reporting an incident in the second degree and County Court sentenced him to five years of probation. He now appeals.

The evidence was legally sufficient and the verdict was not against the weight of the evidence.¹ "A person is guilty of falsely reporting an incident inthe second degree when, knowing the information reported ... to be false or baseless, he or she ... [r]eports, by word or action, to any official or quasi-official agency or organization having the function of dealing with emergencies involving danger to life or property, an alleged occurrence or impending occurrence of a fire ... which did not in fact occur or does not in fact exist" ( Penal Law § 240.55[2] ). Testimony and a recording of the 911 call showed that defendant called an emergency services agency and reported that he had gasoline and was going to set himself on fire. An arson investigator and several police officers testified that the liquid in the gasoline cans was water. This evidence was legally sufficient to establish that defendant falsely reported an impending fire. Although the liquid was never chemically tested to verify its composition, the jury could rely on the testimony of trained individuals who observed the liquid to determine that it was water rather than gasoline. Defendant contends that he was conducting a protest, but his 1st Amendment rights do not permit him to falsely report an impending fire ( see Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 [1919] ). While the jury could have believed that defendant truly intended to light himself on fire to protest the war, it was much more reasonable-considering that he poured water on himself-to conclude that he merely intended to make a scene and create publicity for his viewpoint. Thus, the weight of the evidence supports the jury's verdict that he falsely reported an impending fire knowing that no fire would occur.

County Court did not abuse its discretion in denying defendant's application to file a late notice of intent to submit psychiatric evidence. Such notice must be filed by a defendant within30 days after his or her plea of not guilty ( see CPL 250.10[2] ), but defendant filed his notice more than six months after his initial plea. The trial court may, in its sound discretion, allow notice to be filed at a later time "[i]n the interest of justice and for good cause shown" (CPL 250.10[2]; see People v. Berk, 88 N.Y.2d 257, 265-266, 644 N.Y.S.2d 658, 667 N.E.2d 308 [1996]; People v. Bourne, 46 A.D.3d 1101, 1103, 847 N.Y.S.2d 738 [2007], lv. denied 10 N.Y.3d 762, 854 N.Y.S.2d 324, 883 N.E.2d 1259 [2008] ). The notice, which did not identify defendant's mental condition but merely stated that he was being treated by a...