Appeal from a judgment of the District Court of Nassau County, First District (Lea Ruskin, J.), rendered September 15, 2008.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2011
PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ
The judgment convicted defendant, upon a jury verdict, of criminal impersonation in the second degree. The appeal from the judgment of conviction brings up for review the denial (Margaret C. Reilly, J.) of defendant's motions to dismiss.
ORDERED that the judgment of conviction is affirmed.
Insofar as is relevant to this appeal, defendant was charged in separate informations with criminal impersonation in the second degree in violation of Penal Law § 190.25 (2) and (3), respectively. The District Court (Margaret C. Reilly, J.) denied defendant's motion, as well as his renewed motion, to dismiss the informations in furtherance of justice (CPL 170.30 [g]). Following a jury trial, defendant was convicted of one charge of criminal impersonation in the second degree (Penal Law § 190.25 ) and acquitted of the remaining charge (Penal Law § 190.25 ). Defendant appeals, arguing that the evidence, essentially the arresting officer's narrative of the events leading to defendant's arrest, was legally insufficient generally and because the officer's testimony was incredible as a matter of law; that, in any event, the verdict was against the weight of the evidence; that the District Court, in error, denied his request for a missing witness charge; that the conviction of the charge of criminal impersonation in the second degree in violation of Penal Law § 190.25 (2) was repugnant to his acquittal of the remaining charge under Penal Law § 190.25 (3); and that his motions to dismiss, in the furtherance of justice, the accusatory instrument charging a violation of Penal Law § 190.25 (2) should have been granted. For the reasons that follow, we affirm.
The proof established that, upon being stopped for a traffic infraction, defendant displayed an identification case containing a badge and other documents, and insisted that he was an agent of the Treasury Department and "on the job." The arresting officer testified that defendant had appeared hesitant about allowing close scrutiny of the badge and documents, and that when, after having repeatedly demanded to examine the documents, he had finally received them from defendant, he had determined that the contents of the identification case were of a nature carried by retired agents of the Treasury Department. The officer arrested defendant for criminal impersonation in the second degree (two charges), having concluded that defendant had falsely represented his status as an active-duty agent to avoid being issued a traffic summons, and for failing to signal before turning (Vehicle and Traffic Law § 1163 [a]). Defendant does not appeal from the conviction of the latter offense.
We find no merit to defendant's contention that his motions to dismiss in the furtherance of justice, pursuant to CPL 170.30 (g), should have been granted. The District Court reviewed defendant's arguments with respect to each of the factors enumerated in CPL 170.40 (1) (a-j) and found no compelling facts or circumstances "clearly demonstrating that conviction or prosecution of the defendant . . . would result in an injustice" (CPL 170.40 ). Noting that relief under CPL 170.30 (g) should be exercised only in the rare and unusual case that "cries out for fundamental justice beyond the confines of conventional consideration" (People v Harmon, 181 AD2d 34, 36 ), the District Court properly concluded that defendant's motions failed to satisfy that standard.
Defendant failed to preserve for appellate review his claim that the District Court erred in denying his request for a missing witness charge (CPL 470.05 ; People v Stapleton, 41 AD3d 744, 745 ), and we decline to reach this issue in the interest of justice. Although defense counsel initially argued that the prosecution's failure to produce a police witness merited the charge, before testimony had concluded, the District Court ruled that while a missing witness charge was not warranted on the facts, the defense was free to argue, on summation, why the witness should have been called and the significance of his nonappearance. Defense counsel stated that he was "in agreement" with that ruling, and there was no further claim, at the conclusion of the trial, during the charge conference, or after the charge was delivered, that a missing witness charge should have been given in relation to that witness. Defendant's argument that the verdict was repugnant is not preserved for appellate review (CPL 470.05 ; People v Satloff, 56 NY2d 745, 746 ; People v Rich, 78 AD3d 1200 ), as the defense made no timely objection with respect to the submission of both counts of criminal impersonation to the jury nor, upon defendant's conviction of one of the two charges, did the defense move to resubmit the matter to the jury (People v Carter, 7 NY3d 875, 876 ; People v Pearson, 69 AD3d 1226, 1227 ). We decline to review this contention in the interest of justice.
Defendant's claim that the arresting officer's testimony was incredible as a matter of law is not preserved for appellate review (CPL 470.05 ; People v Hawkins, 11 NY3d 484, 492 ; People v Castellanos, 65 AD3d 555, 556-557 ). In any event, viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 ), it cannot be said that no rational trier of fact would have convicted defendant. The proof established that, after having been stopped for a traffic infraction, and informed of the offense he had committed, defendant had displayed a badge and documents, and employed language understood by the law enforcement community to mean he is on active duty in some law enforcement capacity. His intent to deceive the arresting officer is further evidenced by his attempt to minimize the arresting officer's exposure to the badge and documents, which did not support his claim, and his hesitancy in surrendering the badge and documents notwithstanding the arresting officer's repeated demands therefor. The circumstances permitted the inference that defendant's conduct amounted to a pretense that he was a law enforcement officer on active duty with the intent to avoid being issued a uniform traffic ticket (People v Smith, 79 NY2d 309, 315 ; see also People v Bracey, 41 NY2d 296, 301 ; People v Britton, 49 AD3d 893 ). Finally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ...