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The People of the State of New York v. Elinore Baurczarski

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


May 9, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
ELINORE BAURCZARSKI,
APPELLANT.

Appeal from a judgment of the Justice Court of the Village of Wappingers Falls, Dutchess County (Raymond C. Chase, J.), rendered June 25, 2009. The judgment convicted defendant, after a non-jury trial, of offering a false instrument for filing in the second degree.

People v Baurczarski (Elinore)

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 9, 2011

PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ

ORDERED that the judgment of conviction is affirmed.

Following a non-jury trial, the Justice Court convicted defendant of offering a false instrument for filing in the second degree (Penal Law § 175.30). At the trial, the People proved, among other matters, that on August 21, 2008, defendant had telephoned an automobile wrecking company requesting that a van parked on the property of her cooperative apartment complex be towed and scrapped. Defendant assured the company's employee, who testified to the contents of this conversation over defendant's hearsay objections, that she was authorized to "sign" for the van's removal as its owner. Arriving at the parking lot, the scrapper presented defendant with a Department of Motor Vehicles "MV-35" form, which is captioned "New York State Department of Motor Vehicles Statement of Vehicle Owner Who Does Not Have a Valid Title." The form requires that the person asserting authority to scrap a vehicle certify thereon that he or she is the vehicle's "owner" and that he or she is aware that the form will be filed with the New York State Department of Motor Vehicles. The form also states that "it is a misdemeanor if this statement contains any false information" and that certain additional documents must be filed therewith. Defendant signed the form, handed it to the scrapper, and the vehicle was towed and scrapped. The scrapper testified that he sent the form to the Department of Motor Vehicles. The van's true owner testified that the van was removed without his knowledge or authorization.

A police detective testified that when defendant appeared at the station house in response to an official request, defendant confirmed her address, and upon being informed of the nature of the investigation and the charge that would be filed against her, defendant stated that she believed she was performing "a service to the community and to the [apartment] complex wherein she resided." The witness also stated that he and defendant knew each other "from past cases." Defendant objected that her statements were incriminating and should be suppressed as the product of unwarned custodial interrogation, and that the reference to "past cases" amounted to a Sandoval violation. The Justice Court overruled the objections. At the close of the People's case, defendant argued that the evidence was legally insufficient to establish the offense because the instrument was not offered to a public office or public servant for filing, only to a scrapper, and that the People failed to prove that the instrument was filed with the Department of Motor Vehicles with the required additional documents.

On appeal, defendant renews these claims, which we find to be without merit. It is not necessary, to commit the offense, that the written instrument be presented directly to a public office or public servant. Proof that defendant completed and signed the instrument, which by its plain terms is to become a part of the records of a public office, and delivered it to another person who, she knew or believed, would offer the document to the public office or public servant for filing, permits the actual filing thereof to be attributed to defendant (People v Papatonis, 243 AD2d 898, 899-900 [1997]; see also People v Bel Air Equip. Corp., 39 NY2d 48, 55-56 [1976]; Doolittle v McMahon, 245 AD2d 736, 738-739 [1997]; People v Armitt, 195 Misc 2d 879, 881 [App Term, 9th & 10th Jud Dists 2003]). Whether the actual filing included the documents that are required to be submitted therewith is irrelevant, as the proof of the material false statements contained in the instrument, which was subsequently filed, established the offense. Consequently, viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), the evidence was legally sufficient to support the conviction.

Contrary to defendant's contentions, her telephone statements to the scrapper's employee were not hearsay and were properly admitted as part of the criminal res gestae (see e.g. People v Adames, 53 AD3d 503 [2008]).

We have examined defendant's remaining contentions and find them to be without merit (People v Rodney, 85 NY2d 289 [1995]; People v Velazquez, 33 AD3d 352 [2006]; People v Sturdivant, 277 AD2d 607 [2000]; People v Arch, 265 AD2d 868 [1999]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Molia and LaCava, JJ., concur.

Decision Date: May 09, 2011

20110509

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