SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
December 24, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, --
RAMEEN JACKSON, APPELLANT.
Appeal from a judgment of the District Court of Suffolk County, First District (Jennifer A. Henry, J.), rendered December 7, 2010.
People v Jackson (Rameen)
Decided on December 24, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: LaSALLE, J.P., MOLIA and IANNACCI, JJ
The judgment convicted defendant, upon a jury verdict, of criminal impersonation in the second degree.
ORDERED that the judgment of conviction is reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the District Court for a new trial.
The People charged defendant, in three informations, with public lewdness (Penal Law * 245.00), resisting arrest (Penal Law * 205.30), and criminal impersonation in the second degree (Penal Law * 190.25 ), respectively. After a jury trial, defendant was convicted of criminal impersonation in the second degree and acquitted of the remaining charges.
On appeal, defendant contends that the accusatory instrument charging him with criminal impersonation in the second degree was facially insufficient, that the judgment of conviction was against the weight of the evidence, and that the jury deliberations were prejudiced by delays in supplying jurors with requested readbacks of trial testimony. Alternatively, defendant contends, the judgment of conviction should be reversed on public policy concerns based on his First Amendment right to make the statements alleged to have constituted the criminal impersonation.
To be sufficient, an information must allege "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 ; see CPL 100.40  [a]); the "allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, [must] provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40  [b]); and "[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions [must] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40  [c]). When a defendant fails to move pretrial to dismiss the accusatory instrument as based on hearsay, any such claim is waived (CPL 170.35; People v Keizer, 100 NY2d 114, 121-122 ).
A person is guilty of criminal impersonation in the second degree in violation of Penal Law § 190.25 (3) when he "(a) [p]retends to be a public servant . . . or falsely expresses by his words or actions that he is a public servant or is acting with approval or authority of a public agency or department; and (b) so acts with intent to induce another to submit to such pretended official authority . . . or to otherwise cause another to act in reliance upon that pretense." Here, the accusatory portion of the information tracks the statutory language (People v Yakubova, 11 AD3d 644, 645 ; People v Prevete, 10 Misc 3d 78, 80 [App Term, 9th & 10th Jud Dists 2005]), and the information's factual portion contains allegations by the complainant, a police officer, that, upon the complainant's approach to investigate the public lewdness offense, defendant, pretending to be a police officer, stated, "I'm a police officer, get out of the car." Such allegations satisfy the People's burden at the pleading stage (CPL 100.40).
Defendant also argues that the evidence was factually and legally insufficient to establish the intent element of criminal impersonation in the second degree, namely, that defendant sought any benefit, other than avoiding immediate physical harm, when he made his statement. A verdict is legally sufficient when, viewing the facts in a light most favorable to the People (People v Contes, 60 NY2d 620, 621 ), there is a "valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion reached by the fact finder" (People v Lynch, 95 NY2d 243, 247 ; quoting People v Williams, 84 NY2d 925, 926 ). The offense of criminal impersonation in the second degree in violation of Penal Law § 190.25 (3) requires an "intent to induce another to submit to . . . pretended authority." At the trial, defendant admitted that he had made the statement in question with the intent to induce the complainant and another police officer in the complainant's vehicle to leave him alone. Such evidence is factually and legally sufficient to establish the intent element of the offense.
A claim that a verdict is against the weight of the evidence requires the appellate court to "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences" to determine if "the trier of fact has failed to give the evidence the weight it should be accorded" (People v Bleakley, 69 NY2d 490, 495 ). When "an appellate court performs weight of the evidence review, it sits, in effect, as a thirteenth juror'" (People v Mateo, 2 NY3d 383, 410 , quoting People v Cahill, 2 NY3d 14, 58 ). An appellate court must accord great deference to a factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 ; People v Mateo, 2 NY3d at 410). "Based on the weight of credible evidence, the court then decides whether the [trier of fact] was justified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 ; see e.g. People v Otway, 71 AD3d 1052, 1053 ). Upon a review of the record, we find that the verdict was not against the weight of the evidence.
Defendant further contends that he has a First Amendment right to make such a statement, even if false, and that he was justified in doing so for his own protection. Defendant notes that the statement was made without knowledge that he was being approached by police officers and that, once he became aware of this fact, he submitted to arrest peacefully, thus negating the requisite intent for the crime or, in the alternative, justifying his actions. However, it is well settled that freedom of expression under the First Amendment is not absolute (see Chaplinsky v New Hampshire, 315 US 568, 571 ). Defendant is not being prosecuted for his speech; rather, his culpability arises from his conduct, which is not entitled to constitutional protection.
With respect to defendant's contention that the court erred in failing to charge the jury with a justification defense, this contention is unpreserved for our review (CPL 470.05 ). In any event, the claim is without merit. A justification defense under Penal Law * 35.10 is available where the crime charged involves the use of physical force. Here, the offense of criminal impersonation in the second degree does not require proof of the use of physical force. Moreover, "justification does not negate a material element of the crime charged" (People v Pons, 68 NY2d 264 ), and, by their verdict, the jurors determined that defendant had the requisite intent to commit criminal impersonation in the second degree.
However, we find merit to defendant's contention that he was prejudiced by the District Court's response to the jury's requests for readbacks of testimony. Although this claim is not preserved (CPL 470.05 ; People v Albanese, 45 AD3d 691, 692 ), as a matter of discretion, we reach the issue in the interest of justice. A court must reply to a jury's request for information with a meaningful response (see CPL 310.30; People v Malloy, 55 NY2d 296, 298 ; People v Albanese, 45 AD3d at 692), and the failure to do so constitutes reversible error where the defendant is seriously prejudiced thereby (People v Lourido, 70 NY2d 428, 435 ). Here, on the final day of deliberations, Friday, at approximately 10:30 a.m., the jury asked for readbacks of the entirety of the testimonies of the People's two witnesses and that of defendant. The District Court instructed the jury to suspend deliberations pending the readbacks, on Friday afternoon provided the testimonies of defendant and one of the People's witnesses, and advised the jury that the remaining readback would not be available until the following Monday, and that, if they wished, they could resume deliberations. Without informing the court that they waived further readback and without "indicat[ing] that [they] had resolved the factual dispute by themselves and no longer needed to hear that testimony" (People v Bobadilla, 254 AD2d 493, 494 ; see also People v Quintana, 262 AD2d 101 ; People v Sanders, 227 AD2d 506 ; People v Besner, 21 Misc 3d 144[A], 2008 NY Slip Op 52514[U] [App Term, 1st Dept 2008]), thereby nullifying their request for the readback (People v Albanese, 45 AD3d at 692), the jury, at approximately 6:43 p.m., announced that they had reached a verdict. These circumstances do not assure us that the jury was properly guided in their deliberations by information they had initially deemed necessary, and that the verdict was not the product of expedience rather than a conscientious review of the evidence.
Accordingly, the judgment of conviction is reversed and a new trial ordered.
LaSalle, J.P., Molia and Iannacci, JJ., concur. Decision Date: December 24, 2012
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