People v. Clairborne

Christ, J.

The defendant was tried under two indictments, one charging perjury, the other charging her with falsely reporting an incident, a misdemeanor (Penal Law, § 240.50), and criminal solicitation in the third degree, a violation (Penal Law, § 100.00). At the end of the defendant’s case, the Trial Term dismissed the perjury indictment and accepted the defendant’s guilty plea to both counts of the other indictment.

The first count of the latter indictment, charging the defendant with falsely reporting an incident, alleged that while the defendant knew a person had received injuries in an alleged fight which had occurred in her bar, she told a police officer that the injuries had not been received in the bar. A police officer testified before the Grand Jury and at the trial that he had approached the *501defendant and initiated a conversation with her. It was undisputed that the false information was given by the defendant in response to the officer's question.

Section 240.50 of the Penal Law, in relevant part, provides’: ‘ ‘ A person is guilty of falsely reporting an incident when, knowing the information reported, conveyed or circulated to be false or baseless, he: * * * 3. Gratuitously reports to a law enforcement officer or agency * * * (c) false information relating to an actual offense or incident or to the alleged implication of some person therein.”

The evidence before the Grand Jury and the trial court did not constitute the crime of falsely reporting an incident. Since the defendant did not initiate the conversation with the police officer, but merely responded to his inquiry, it cannot be said that the defendant “ gratuitously ” reported false information to a law enforcement officer. The Trial Term should have rejected the guilty plea to the crime of falsely reporting an incident, since the undisputed evidence clearly indicated that the defendant had not committed an act which constituted this crime (cf. People v. Seaton, 19 N Y 2d 404; People v. Serrano, 15 N Y 2d 304).

The defendant’s indictment for the violation of criminal solicitation in the third degree cannot stand. The Grand Jury has no authority to return an indictment for a violation as distinguished from a crime (People v. Du Pont, 28 A D 2d 1135).

For these reasons the judgment should be reversed, on the law, and the indictment dismissed.