People v. Nuhibian

• Decision Date: 04 February 1994
• Citation: 201 A.D.2d 962,607 N.Y.S.2d 994
• Parties: PEOPLE of the State of New York, Respondent, v. John L. NUHIBIAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 994

607 N.Y.S.2d 994

201 A.D.2d 962

PEOPLE of the State of New York, Respondent, v. John L. NUHIBIAN, Appellant.

Supreme Court, Appellate Division Fourth Department.

Feb. 4, 1994.

Gary Muldoon, Rochester, for appellant.

James King by Jane LaRock, Watertown, for respondent.

Before DENMAN, P.J., and GREEN, BALIO, FALLON and BOEHM, JJ.

MEMORANDUM:

Defendant contends that the evidence was insufficient to sustain his conviction of criminal impersonation in the second degree. We agree. Penal Law § 190.25(1) states that a person is guilty of criminal impersonation in the second degree when he "impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another". The only proof that defendant impersonated "another" was the hearsay testimony of one police officer that another police officer "did a computer check, and he said that there was [sic] individuals of that name". Although defendant had identified himself to the police as James Allen Adkins of Jacksonville, Florida, the People made no effort to prove that the identity assumed by defendant was that of a real person. The People's proof established only that defendant had given a fictitious or assumed name. Such proof, standing alone, is not sufficient to establish criminal impersonation in the second degree (see, People v. Jones, 84 Misc.2d 737, 376 N.Y.S.2d 885, mod. on other grounds 63 A.D.2d 637, 405 N.Y.S.2d 461, revd 47 N.Y.2d 409, 418 N.Y.S.2d 359, 391 N.E.2d 1335; People v. Gaissert, 75 Misc.2d 478, 348 N.Y.S.2d 82). Therefore, defendant's conviction of criminal impersonation in the second degree must be reversed, the sentence imposed thereon vacated, and that count of the indictment dismissed.

We reject defendant's remaining contentions. There is sufficient evidence to sustain the jury's finding that defendant attempted to enter a residence unlawfully with intent to commit larceny therein (see, People v. Vivenzio, 103 A.D.2d 1044, 478 N.Y.S.2d 438). The criminal intent of defendant "can be inferred from his unexplained, unauthorized presence on the premises, from his actions while on the premises, and from his actions and assertions when confronted by the police or the owner" (People v. Gates, 170 A.D.2d 971, 972, 566 N.Y.S.2d 137, lv. denied 78 N.Y.2d 922, 573 N.Y.S.2d 475, 577 N.E.2d 1067; see also People v. Mitteager, 44 N.Y.2d 927, 928, 408 N.Y.S.2d 9, 379 N.E.2d 1139; People v. Davis, 41 N.Y.2d 678, 394 N.Y.S.2d 865, 363 N.E.2d 572; People v. Cozzetto, 142 A.D.2d 684, 530 N.Y.S.2d 600). The test is whether, considering the facts proved and the inferences that can reasonably be drawn therefrom, any reasonable trier of fact could have concluded that defendant possessed a criminal intent at the time of the attempted unlawful entry ( see, People v. Barnes, 50 N.Y.2d 375, 381, 429 N.Y.S.2d 178, 406 N.E.2d 1071; People v. Gates, supra ). That test has been met by the proof herein.

Defendant was not present during that portion of the...