The People v. Taylor
| Decision Date | 17 December 2010 |
| Docket Number | Index No. 1532/07,2009-03219 |
| Citation | 2010 NY Slip Op 09376 |
| Parties | The People, etc., respondent, v. Robert Taylor, appellant. |
| Court | New York Supreme Court — Appellate Division |
Lynn W. L. Fahey, New York, N.Y. (Jonathan Garvin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Brooke E. Barnes of counsel), for respondent.
PETER B. SKELOS, J.P.
FRED T. SANTUCCI
DANIEL D. ANGIOLILLO
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered March 24, 2009, convicting him of falsely reporting an incident in the third degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
In the early morning hours of May 6, 2007, the defendant appeared at Queens General Hospital for treatment of a gunshot wound to his left foot. After the hospital notified the police, New York City Police Officer Warren Savage responded to the hospital, and asked the defendant what had happened. The defendant answered that, while he was standing on the corner of 157th Street and South Road in Jamaica, Queens, an unknown black male fired shots at the ground, and he was struck in the foot. The defendant was subsequently transferred to another hospital, where he gave a similar account to New York City Police Detective Charles LoPresti. Detective LoPresti told the defendant that he did not believe his story and warned the defendant that if his account proved to be false, he would be charged with filing a false police report. The defendant then changed his story, and told Detective LoPresti that he had been drinking in a bar on Linden Boulevard, between 111th and 116th Streets, a location within the 113th Precinct. He stated that, when he left the bar, he was shot by someone he did not see. The defendant wrote out this account in Detective LoPresti's presence.
Detective LoPresti notified the 113th Precinct, and Detective Daniel Bendig came to the hospital and questioned the defendant. The defendant changed his story again, this time telling Detective Bendig that he had been at a house near 107th Avenue and 105th Street watching a boxing match, when he got into an altercation over a bet with a man named "Drew Hamilton," who pulled out a gun and shot him in the foot. Detective Bendig subsequently initiated efforts to locate "Drew Hamilton." His computer check, however, produced no information. After the defendant wasreleased from the hospital, Detective LoPresti reinterviewed him. This time, the defendant admitted, in another written statement, that he had been drinking in a bar near Sutphin and Linden Boulevards in Jamaica, became intoxicated, and shot himself in the foot when he dropped his.22 caliber handgun while leaving the bar.
The defendant was subsequently indicted for criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and two counts of falsely reporting an incident in the third degree. At trial, the People presented evidence of the police investigation and the defendant's statements. Testifying in his own behalf, the defendant told the jury that his father had shot him during an argument, and that he had inculpated himself only to protect his father. The defendant acknowledged that he had made the earlier false statements to Detectives LoPresti and Bendig.
In summation, defense counsel focused entirely on the weapon possession counts and did not address the two counts of falsely reporting an incident in the third degree. The People addressed the latter counts only briefly, arguing, inter alia, that the defendant had admitted at trial that the statements were false:
With respect to the two counts of falsely reporting an incident in the third degree, the Supreme Court instructed the jury as follows:
Defense counsel raised no objection to the charge. Later, when the jury asked for a "breakdown" of the elements of the two counts of falsely reporting an incident in the third degree, the Supreme Court instructed:
Again, the defendant failed to object. After further deliberations, the jury acquitted the defendant of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, but convicted him of both misdemeanor counts of falsely reporting an incident in the third degree.
The defendant does not dispute that the Supreme Court correctly defined the crime of falsely reporting an incident in the third degree by instructing the jury that a person is guilty of that crime "when, knowing the information reported, conveyed or [circumstances relayed] to be false... he gratuitously reports to a law enforcement... agency the alleged occurrence of [the] offense... which did not in fact occur" (Penal Law § 240.50[3][a]). In describing the elements of the crime, however, the Supreme Court instructed the jury that "[t]he two elements the People must prove beyond a reasonable doubt, one, on or about May 6, 2007, in our County of Queens this defendant falsely reported information regarding an offense to law enforcement agencies that did not occur... and, secondly, he did so knowingly." The defendant argues that the Supreme Court erred in omitting the element that the false report must be "gratuitously" made. The defendant, however, did not object to the Supreme Court's failure to include, as an element of the crime, that the false reports were made "gratuitously," and we reject the defendant's request that we exercise our interest of justice jurisdiction to review his claim regarding the Supreme Court's charge.
The defendant further contends that the evidence was legally insufficient to establish his guilt of falsely reporting an incident in the third degree. In People v Dekle (56 NY2d 835, 837), the Court of Appeals wrote:
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