People v. Sherman

• Decision Date: 28 October 1982
• Citation: 455 N.Y.S.2d 528,116 Misc. 2d 109
• Parties: The PEOPLE of the State of New York v. Douglas SHERMAN, Defendant.
• Court: New York City Court

Page 528

455 N.Y.S.2d 528

116 Misc.2d 109

The PEOPLE of the State of New York v. Douglas SHERMAN, Defendant.

Rochester City Court Monroe County.

Oct. 28, 1982.

Gary Muldoon, Riverhead, for defendant.

Kathleen A. Majewski, Asst. Dist. Atty., for the People.

DECISION

DAVID D. EGAN, Judge.

The Defendant has moved by Notice of Motion and Supporting Affirmation of Gary Muldoon, Esq., dated September 9, 1982 for various relief, including dismissal of the charges that he violated Penal Law Sections 190.25(1) Criminal Impersonation and 195.05 Obstructing Governmental Administration on the grounds that the complaint is defective by not meeting the standards of CPL Section 100.15(3) requiring the allegation of facts of an evidentiary character supporting or tending to support the charges. The People responded by Notice of Cross Motion and Answering Affirmation of Kathleen A. Majewski, Esq., Assistant District Attorney, dated September 27, 1982.

The Defendant was issued traffic tickets by a Rochester Police Officer charging defendant with speeding, two counts of driving while intoxicated and driving without an operator's license. In addition he was charged with Criminal Impersonation Section 190.25(1) and Obstructing Governmental Administration Section 195.05 under the Penal Law supported by factual allegations which in summary stated that when defendant was stopped under the Vehicle and Traffic Law he gave his name as James D. Shereken, after being transported downtown, advised of his constitutional rights and commissioners warnings, defendant signed the commissioners warnings with the name James D. Shereken. Thereafter, defendant submitted to a breathalyzer test and upon completing the prisoner data reports the defendant stated that he had intentionally lied to the police officer and had thrown his wallet containing personal papers and identification papers in a waste basket in the garage area of the Public Safety Building in order to avoid problems or prosecution under his real name.

A person is guilty of criminal impersonation in the second degree, Section 190.25(1) 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 benefit sought need not be monetary but may be, as is alleged in this case, to avoid problems or prosecution under defendant's real name. The question before the Court is, does the complaint allege facts which would satisfy that part of the statute requiring defendant to impersonate "another" before guilt attaches?

The word "another" means a real person and not just a fictitious or assumed name. People v. Powell, 59 A.D.2d 950, 399 N.Y.S.2d 477 (1977); People v. Jones, 84 Misc.2d 737, 376 N.Y.S.2d 885 (1975); People v. Simmons, 79 Misc.2d 249, 357 N.Y.S.2d 362 (1974); People v. Gaissert, 75 Misc.2d 478, 348 N.Y.S.2d 82 (1973). This line of cases is followed by recommended jury instructions for Section 190.25(1) which call for a charge to the jury which reads in part, "that in so doing, the defendant impersonated another person, to wit (name of person impersonated). To 'impersonate' is to pass oneself off as another having a certain identity." Criminal Jury Instructions, N.Y. Vol. 3 p. 1297.

The Court has noted the cases of People v. Bentley, 78 Misc.2d 578, 359 N.Y.S.2d 391 (1974) and People v. Diamond, 77 Misc.2d 412, 353 N.Y.S.2d 688 (1974). In Bentley the Court considered an appeal from a plea to criminal impersonation where the name of a fictitious person was signed to a cash register receipt by the defendant. The plea to 190.25(1) was in satisfaction of other charges and the Court's attention was not drawn to the issue being dealt with in this case. In Diamond the Court held that where defendant held himself out to be a transit authority conductor, which he was not, was enough to make him chargeable with criminal impersonation under both Sections 190.25(1) and (3). This Court is not following that part of the Diamond case which would hold defendant chargeable under Section 190.25(1).

Inasmuch as the complaint does not allege that defendant passed himself off as another real person having a certain identity, the complaint is defective and must be dismissed.

Obstructing Governmental...